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EIGHTEENTH ANNUAL REPORT

OF THE

BUREAU OF AMERICAN ETHNOLOGY

TO THE

SECRETARY OF THE SMFPHSOXIAN INSTITUTION 18yC)-"U7

BY

J. ^V. fOAVELL

DIRECTOR IlSr TWO PARTS-PART 2

WASHINGTON

GOVERNMENT PRINTING OFFICE 1899

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INDIAN LAND CESSIONS

IN THE

UNITED STATES

COMPILED HY

CHARLES C ROYCE

WITH AN INTRODUCTION BY

CYRUS THOMAS

5L'l

CO iN TENTS

Page

Introduction, by Cyrus Thomas 527

Eiglit to the soil dependent on discovery 527

Foreign policy toward tlie Indians 538

The Spanish policy 539

The French policy 545

The English policy 549

Colonial policy toward the Indians 562

The policy in general 562

Virginia 563

Maryland 569

New York 575

New Jersey 587

Pennsylvania. . .. ^ 591

Massachusetts 599

Connecticut 611

Rhode Island 619

North Carolina 624

South Carolina ..'. 630

Georgia 634

New Hampshire and Delaware 639

Policy of the United States 640

Acknowledgments 644

Schedule of treaties and acts of Congress aathorizing allotments of land

in severalty 645

Schedule of land cessions 648

523

LIST OF MAPS

If umber

Plate CVIII. Alabama 1

CIX. Alabama (northern portiou) 2

ex. Arizona 1 3

CXI. Arizona 2 4

CXII. Arkansas 1 5

CXIII. Arkansas 2 6

CXIV. California 1 7

CXV. California 2 (with inset special map) 8

CXVI. Colorado 1 9

CXVII. Colorado 2 10

CXVIII. Dakota (North and .South) 1 H

CXIX. Dakota (North and South) 2 •. 12

CXX. Dakota (North and South) 3 13

CXXI. Florida 14

CXXII. Georgia 15

CXXIII. Idaho 16

CXXIV. Illinois 1 17

CXXV. Illinois 2 ^ 18

CXXVI. Indiana 19

CXXVIJ. Indiana, detail 20

CXXVIII. Indian Territory and Oklahoma 1 21

CXXIX. Indian Territory and Oklahoma 2 22

CXXX. Indian Territory and Oklahoma 3 23

CXXXI. lowal 24

CXXXII. Iowa2 25

CXXXIII. Kansas 1 .-. . . 26

CXXXIV. Kansas 2 '. 27

CXXXV. Louisiana 28

CXXXAa. Michigan 1 29

CXXXVII. Michigan 2 '. 30

CXXXVIII. Michigan (Saginaw bay to Lake Erie) 31

C'XXXIX. Michigan (region about Mackinaw and Detroit) 32

CXL. Minnesota 1 33

CXLI. Minnesota 2 34

CXLII. Minnesota (northern portion) 35

CSLin. Mississippi 36

CSLIV. Missouri 1 .' 37

CXLV. Missouri 2 38

CXLVI. Montana 1 ." 39

CXLVII. Montana 2 40

CXLVIII. Nebraska 41

CXLIX. Nebraska (eastern portion) 42

CL. Nevada 43

CLI. New Mexico 1 44

525

526 LIST OF MAPS [ETH.ANN. 18

Kumber

Plate CLII. New Mexico 2 45

CLIII. New Mexico aud Texas (detail) 46

CLIV. New York 47

CLV. North Carolina, portiou of 48

CLVI. Ohio 49

CLVIT. Ohio (detail) 50

CLVIII. Oregon 1 51

CLIX. Oregon 2 52

CLX. Pennsylvania 53

CLXI. Tennessee (with portions of bordering states) 54

CLXII. Tennessee (detail) 55

CLXIII. Tennessee and Alabama (portions of) 56

CLXIV. Texas (portion of) 57

CLXV. Utah 1 58

CLXVI. Utah 2 59

CLXVII. Washington 1 60

CLXVIII. Washington 2 61

CLXIX. Washington (along Admiralty inlet) 62

CLXX. Washington (northwestern) 63

CLXXI. Wisconsin 1 64

CLXXII. Wisconsin 2 65

CLXXIII. Wyoming 1 66

CLXXI V. W vuniing 2 67

INDIAN LAND CESSIONS IN THE UNITED STATES

Bv Charles C Royce

INTRODUOTK^N

I!y Cyri's Thomas

RIGHT TO THE SOIL, DEPEXDEXT OX DISCOA'ERV

Among- the various problems forced on European nations by tlie discovery of America was tliat of determining tlieir respective riglits in regard to the territory of the newly discovered continent. The tact that the country was inhabited by and in jjossession of a native poi^u- lation does not appear to have been talieu into consideration in the solution of this problem.

Each of the great nations of Europe was eager to appropriate to itself so inui-li of the new continent as it could ac()uire. Its extent afibrded an ample field for the ambition and enterprise of all, and the character, low culture-status, and leligious beliefs of the aborigines afibrded an apology for considering them a people over whom the superior genius of Euro[>e might rightfully claim an ascendency. The sovereigns of the Old World therefore found no difficulty in convincing themselves that they made ample compensation to the natives by bestowing on them the benefits of civilization and Christianity in exchange for control over them and their country. Howevev, as they were all in pursuit of the same object, it became necessary, in order to avoid conflicting settlements and conseciuent war with one another, to establish a priucii)le which all would acknowledge as the law by which the tight, as between themselves, to the acquisition of territory on this continent, should be determined. This principle was, that discovery of lands gave title therein to the government by whose subjects or by whose authority such discovery was made, against all other European or civilized governments, which title might be consummated by pos- session. This is clearly shown, not only by the express declarations ofScially made in beiialf of the different powers, but also by the word- ing of the various grants and charters allowed by them. However, the

527

528 INDIAN LAND CESSIONS IN THE UNITED STATES [etii.ann. 18

opinion of tbe United States Supreme Court' is so full and decisive on this point that a summary of the statements therein contained will dis- pense with the necessity of furnishing proof of the acknowledgment of this principle from the history of the discovery and settlement of the continent.

Although Spain obtained immense territory in the western continent, she did not rest her title solely on the grant of the Pope. On the con- trary, her diiJcnssions witli France, Great Britain, and the United States respecting boundaries all go to show very clearly that she based her claims on the rights given by discovery.

France also founded her title to the territories she claimed in America on discovery. Her claim to Louisiana, comprehending the immense territory watered by the Mississippi and its tributaries, and her claims in Canada as well, were based expressly on discovery. In the treaties made with Spain and Great Britain by the United States this title was recognized by the latter. The claims by the states of Holland to American territoiy were based on the same title, and the contest with them by the English was not because of a dispute of this prin- ciple, but because the latter claimed prior discovery. All the transfers of American territory from one European nation to another were based on the title by discovery; nor did any one of the European powers give more complete or more unequivocal assent to this principle than England. In l-iOG her monarch commissioned the Cabots to discover countries "then unknown to all Christian people," with authority to take possession of them in the name of the King of England. To the discovery made by these navigators have the English traced the title to their possessions in North America.

In all these claims and contests between the civilized nations of Europe, the Indian title to the soil is nowhere aUowed to intervene, it being conceded that the nation making the discovery had the sole right of acqniring the soil from the natives and of establishing settlements on it. This was understood to be a right with which no other Euro- pean government could interfere ; it was a right which each government asserted for itself and to which all others assented. Those relations which were to exist between the discoverers and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between tliem.

Nevertheless, it must not h6 understood that the Indians' rights were wholly disregarded by the powers in planting colonies in the territories taken ])ossession of by them.

Continuing, the court remarks —

In the e8tablishra(mt of tliese relatioiis, the rights of the original inhabitants were, in no iustnnce, entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it [or rather so much as was necessary for their use], and to use it according to their own discretion; but their rights to

ijohnsou and Grabara's lessee v. Mcintosh, 8 Whcaton, p. 543 et seq.

THOMAS] RIGHT TO SOIL DEPENDENT OX DISCOVERY 529

coiaiilete sovereignty, ns iudependent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental prinriple that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives as occu- pants, they asserted the ultimate dominion to be in themselves ; and claimed and exer- cised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have heCn understood by all to con- vey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

In these statements the court, of course, speaks only lioni the legal point of view or theory, for it is well known that in their practical deal- ings with the natives the nations of Europe, and the United States also, often failed to carry out this theory. It is also doubtful whether it can truly be said that France fully recognized the Indian title, even theo- retically, to the extent indicated.

The right to take possession regardless of the occupancy of the natives was not only claimed by all the nations making discox erics, but the same principle continued to be recognized. This is shown by the following instances adduced by the court, to which many others might be added :

The charter granted to Sir Humphrey (iilliert, in 1578, authorizes him to discover and take possession of such remote, heathen aud barbarous lauds as were not actu- ally possessed b}' any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms.

By the charter of lfi06, under which the first peruiaueut English settlement on this continent was made, .lames I. granted to Sir Thomas (iates aud others, those territories in America lying on the sea-coast betweeu the thirty-fourth and forty-fifth degrees of north latitude, aud which either belonged to that monarch, or were not then pos- sessed by any other Christian prince or people. The grantees were divided into two companies at their own request. The first, or southern colony, was direotea to settle between the thirty-fourth and forty-first degrees of north latitude: and the second, or northern colony, betwein the thirty-eighth and forty-fifth degrees.

In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the Crown to the first colony, in which the King granted to the '■ Treasurer and Company of Adventurers of the city of London for the first colony in Virginia," in absolute property, the lauds extending along the sea-coast 400 miles, and into the land throughout from .sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as resijected the rights of the company, by the. judgment of the Court of King's Bench on a writ of quo u-arranto; but the whole effect allowed to this judgment was to revest in the crown the powers of government, and the title to the land within its limits.

At the solicitation of tho.se who held under the grant to the second or northern C(dony, a new and more enlarged charter was granted to the Duke of Lenox and others, in lt!20, who were denominated the Plymouth Company, C(mveying to them in absolute property all the lauds between the fortieth and forty-eighth degrees of north latitude.

Under this p.itent, New England has been in a great measure settled. The com- pany conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; aud in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers.

530 INDIAN l.AXI) CESSIONS IN THE UNITED STATES [eth.axn. 18

Great part of New England was granted by this coiiii)any, wliirh at length divided their remaiuiii'; lands among themselves; and, in 1635, surrendered their charter to the crown. A patent Avas granted to Gorges for Maine, which was allotted to him in the division of property.

All the grants made by the Plymouth Company, so far as we can learn, have been respected. In pursuance of the same principle, the King, iu 16t)4, granted to the Duke of York the country of New England as far south as the Delaware bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret.

Iu 1663, the Crown granted to Lord Clarendon aud others, the country lying between the thirty-sixth degree of north latitude and the river St Mathes; aud, in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the King's dominions iu North America which lies from thirty-sixth degrees thirty minutes north latitude to the twenty-ninth degree, and from the Atlantic Ocean to the South se;i.

Tlius has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the Crown, or was vested in tlie colonial government, the king claimed and exercised the right of granting lands and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied by the powers of government, as in the case of tlio northern neck of Virginia. It has never been objected to this, or to any other similar grant, th.it the title as well as possession was in the Imlians when it was made, and that it ])assed nothing on that account.

These various patents can not be considered as nullities; nor can tliey be limited to a mere grant of the powers of government. A charter intended to convey politi- cal power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismem- ber proprietary governments was not claimed; and, iu some instances, even after the powers of government were revested in the crown, the title .of the proprietors to the soil was respected.

Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, ami he did not venture to contest the right of that colony to the soil. The Carolinas Were originally proprietary governments. In 1721 a iev(.lution was ert'ected by the people, wlio shook off tlieir obedienci^ to the pro- prietors, and declared their dependence immediately on the crown. The king, how- ever, purchased the title of those who were disposed to sell. One of them. Lord Carteret, surrendered liis interest in the government, but retained his title to the soil. That title was respected till the revolution, when it was forfeited by the laws of war.

Further proofs of the extent to which this principle has been recognized, will be found in the history of the wars, negotiations and treaties which the difierent nations, claiming territory in America, have carried on aud held with each other. . . .

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the dis- coverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this princi]ile?

By the treaty which concluded the war of our Kevolutiou, Great Britain relin-

THOMAS] RIGHT TO SOIL DEPENDENT OX DISCOVERY 531

quislied all claim, not only to tlie goverumeut, but to the "propriety and terri- torial rights of the United States," whose lioundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had preriously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence ; but neither the declar- ation of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several states, had a clear title to all the lauds within the bouudary lines descrilied in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vesteil in that government which might constitutionally exercise it.

That this rule ba.s been adopted also by the United States is asserted by the Supreme Court in the same opiiiiou :

The United ."states, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of .sovereignty as the circum-stauces of the people would allow them to exercise.

The power now possessed by the Goverumeut of the United .States to grant lands resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exer- cised uniformly over territory in possession of tlie Indians. The existence of this power must negative the existence of any right which may conflict with, and con- trol it. An absolute title to lands can not exist, at the same time, in ditt'ereut per- sons, or in different governments. An absolute, umst be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recog- nize the absolute title of the crown, subject only to the Indian right of oicupancy, and recognized the ab.solute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants, .and manufacturers, have a right, on abstract principles, to expel hunters from the terri- tory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror can not deny, whatever the private and s|ieculative ojiiuions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our goverumeut, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extiuguishiug the title which occupancy gave to them. These claims have been maintained and estab- lished as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now liold. originates iu them. It is not for the courts of this country to question the validity of this title or, to sustain one which is incompatible with it.

Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justilication, in the character and habits of the people whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The comiueror pre- scribes its limits. Hnmauity, however, acting on public opinion, has estalilished, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one jieople. Where this incorporation is practicable,

532 INDIAN LAND CESSIONS IN THE UNITED STATES [eth axn. 18

humanity demands, and a wise policy requires, tliat the rights of the comiuered to property should remain nnimparied; that the new subjects should he governed as etiuitalily as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.

AVhcn the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct jieople, jjublic opinion, which not even the conqueror can disregard, imposes these restraints upou liiin; and he can not neglect them without injury to his fame and hazard to liis power.

But the tribes of Indians inhabiting this country were tierce savages, whose occu- pation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to gov- ern them as a distinct people was impossible, because they were as bravo and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not lie governed as a distinct society, or of remaining in their neighborhood and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the iuimediate neighborhood of agriculturists hecame uuiit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claiuicd title, being no longer occupied by its ancient inhabit- ants, was parceled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deiiuties.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a jieople under such circum.stances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the ijretensiou of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and can not be questioned. So, too, with respect to the con- comitant i)rinciple, that the Indian inhabitants are to lie considered merely as occu- pants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be sup- ported by reason, and certainly can not be rejected by courts of justice. . . .

It has never been contended that the Indian title amounted to nothing. Their right of jjossession has never been (luestioncd. The claim of government extends to the complete ultimate title, charged witli this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the sea-coast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of wliich were ascertained to be licneficial, it would have been as unwise as ungracious to expel them from their habitations

THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 633

because they hail obtained the Iiuliaii title otherwise thau through the agency of goverumfut. The very grant of a charter is an assertion of the title of the erowu, and its words convey the same idea. The country granted is said to he "our island called Rhode Island;" and the charter contains an actual grant of the soil, as well as of the powers of government.

The decision in this case is of course conclusive in regard to the nature of the Indian title to lauds as held by our Government. Xever- theless, a brief i-efereuce to the history of the subjoct preceding- the date of decision (1823) will be appropriate here before alluding to the policy adopted in regard to the exting-uishment of this title.

As early as September 22, 1783, while yet operating uuder the Articles of Confederation, the following "proclamation" was ordered by Con- gress.'

Whereas by the 9th of the Articles of Confederation, it is among other things declared, that "the United States in Congress assembled have the sole and exclusive right and power of regulating the trade, and managing all aftairs with the Indians not members of any of the States, provided that the legislative right of any State, within its own limits, be not infringed or violated." And whereas it is essential to the welfare of the United States, as well as necessary for the maintenance of har- mony and friendshii> with the Indians, not members of any of the States, that all cause of c^uarrel or complaint between them and the United States or any of them, should be removed and prevented; therefore, the United States in Congress assem- bled, have thought proper to issue their proclamation, and they do hereby jirohibit and forbid all persons from making settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular State, and from pur- chasing or receiving any gift or cession of such lands or claims without the express authority and direction of the United States in Congress assembled.

It IS, moreover, declared that every such purchase or settlement, gift or cession, not having the authority aforesaid, is null and void, and that no right or title will accrue in consequence of any such purchase, gift, or settlement.

By the eighth section of the act of Congress of March 1, 1793, enti- tled " An act to regulate trade and intercourse with the Indian tribes," the same principle was enacted into law, as follows:

And he it further tnactetJ, That no purchase or graut of lauds, or of any title or claim thereto, from any Indians, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution. And it shall be a misdemeanor in any person, not employed under the authority of the United States in negotiating such treaty or convention, punishiible by fine not exceeding one thousand dollars, .and imprisonment not exceeding twelve months, directly or indirectly to treat with any such Indians, n.ation or tribe of Indians, for the title or purchase of any lands by them held or claimed: Provided, nevertheless, That it shall be lawful for the agent or agents of any State, who may be present at any treaty held with the Indians, under the authority of the United States, in the pres- ence, and with the approbation of, the Commissioner or Commissioners of the United States appointed to hold the same, to projiose to, and adjust with, the Indians, the compensatiou to be made for their claims to lands within such State, which shall be extinguished by the treaty.^

'Old Jouroals, vol. iv (17S3). p. 275. as copied in "Laws, etc., respecting the Public Lands," Wash ingtoD, Gales & Seaton, 1828; pp. 338-339. 2 0p. eit , pp. 414^15.

534 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

This is repeated iu sectiou 12 of the act of May 19, 179G, entitled "An act to regulate trade and intercourse \ritli tlie Indian Tribes, and to preserve peace on the frontier;" also in section 12 of the act of March 30, 1802. By section 15 of the act of March 26, 1804, "erecting Louis- iana into two Territories, and providing for the temporary government thereof,"' it is ordered that —

The President of the United States is hereby authorized to stipulate with any Indian tribes owning lands on the East side of the Mississippi, and residing thereon, for an exchange of lauds tbe property of the United States, on the West side of the Mississippi, iu case the said tribe sliall remove and settle thereon; but, in such stipulation, the said tribes shall acknowledge themselves to be under the protection of the United States, and shall agree that they will not hold any treaty with any foreign Power, individual State, or with the iinlividuals of any State or Power; and that they will not sell or dispose of the said lands, or any p.art thereof, to any sovereign Power, except the United States, nor to the subjects or citizens of any other sovereign Power, nor to tlie citizens of tlie United States. And in order to maintain peace and trannuillity with the Indian tiil)e8 who reside within the limits of LoiiLsiana, as ceded by France to the United States, the act of Congress, passed on the thirtieth day of JIarch, one thousand eight hundred and two, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,'' is hereby extended to tbe Territories erected and established by this act ; and the sum of fifteen thousauiT dollare, of any money in the Treasury, not otherwise appropriated by law, is hereby appropririteilj to enable the President of the United States to effect the object expressed in this sefttiou.'

As this law was not to take effect until Ocli)ber 1, 1804, it was pro- vided that until this date the act passed October 31, 1803, entitled "An act to enable the President of the United States-<te tjjke possession of the territories ceded by France to the United States'"."" . . and for the teini)or;iry government thereof," was^ to veniaiirhi'S^ce. All rights of the Indians within the limits of Louisiana wliich existed under the French control remained, therefore, under United States authority until October, 1804.

To complete the chain we note the fact that, by article 6 of the treaty of Apiil 30, 1803, by which France ceded Louisiana to the United States, the latter promised "to execute such treaties and arti- cles 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."

These acts and treaties indicate, and in fact form, steps in tlie policy of the United States in its dealings with the Indians in reference to their lands, and will be noticed in this connection hereafter. The object at i)resent in referring to them is only to show the theory of the Government in regard to the Indian title.

It is clear, therefore, that although the United States has always conceded to the Indians the usufruct or right of occupancy to such lauds as they were in possession of, yet they have always held the theory of the European powers, and claimed that the absolute right to the soil was in the Government.

'Op.cit.,p.509.

THOMAS) RIGHT TO SOIL DEPENDENT ON DISCOVERY 535

However, as will be seen when allusion is made to tlie i)olicy of the nations in their dealings with the Indians, there was some difference in regard to the extent of their right or title. This was limited by some of the governments to the territory occupied, while by others, as the United States, it was usual to allow it to extend to the territory claimed, where the boundaries between the different tribes were under- stood and agreed on. It would seem, in fact, that the United States proceeded on the theory that (lU the land was held by uatives. A sin- gle instance occurs to the writer at present where land was taken pos- session of as waste or without an owner. This is mentioned by Mr Royce in his remarks under schedule number 432.

The right of occupancy in the Indians, until voluntarily relinquished or extinguished by justifiable conquest, being conceded, it became nec- essary on the part of the Government to adopt some policy to extinguish their right to such territory as was not necessary for their actual use.

As a natural corollary of this theory arose the question, With whom shall the Government treat? The Indians having no general govern- ment or regular political organization, but consisting of numerous independent tribes iu a state of savagery, the usual policy of civilized nations in a case of conquest could not be adopted. As their claims were those of tribes or communities, and not individuals in severalty, it followed as a matter of necessity that the only i^olicy which the Gov- ernment could adopt was to recognize them as quasi and dependent, distinct political communities, or nations, or half sovereign states, and treat them as such.

It has been said that the method of regarding them as distinct peoples or nations and treating with them as such is a "legal fiction.'' Nevertheless, if we studj' carefully all the circumstances which sur- round the case, and the pressing necessities of the Eepublic iu its early days, we are likely to be convinced that it was not the part of wisdom then to hamper the struggles for national life with theoretic lines or legal technicalities, which stood in the way of practical progress. Humanity is an element which should attend every step of governmental as well as of individual progress, but political theories must be broad- ened, restricted, or varied in accordance with new and imperative necessities which arise.

It is doubtless true that the recognition of the Indian tribes as dis- tinct nationalities, with which the Government could enter into solemn treaties, was a legal fiction which should be superseded by a more correct policy when possible. But necessity often makes laws, and in this instance forced the Government to what was, in its early days, probably the best possible policy in this respect, consistent with humanity, which it could have adopted.

A doubt has also been expressed as to whether the United States or any European power could, with perfect honesty and integrity, purchase 18 ETH, PT 2 2

536 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

lands of the natives under tlieir caie and ])rotection. Bozmau,' who expresses this doubt, bases it on the following considerations:

First, it is not a clear proposition tliat savages can, for any consideration, enter into a contract obligatory iipmi tbeni. Tliey stand by the laws of nations, when trafficking with the civilized part of niaukiud, in the situation of infants, imapable of entering into contracts, especially for the sale of their country. Should this be denied, it may then be asserted that no niouarcli of a nation (that is, no sachem, chief, or headmen, or assemblage of sachems, etc.) has .a power to transfer by sale the country, that is, the soil of the nation, over which they rule.

That the Indians of the United States have been and are still con- sidered wards of the Government must be conceded. It also must be admitted that, as a general rule of law, wards can not divest themselves of their title to land except through the decree of court or some prop- erly authorized power. But in the case of the Indians the Government is both guardian and court, and as there is no higher authority to which api)lication can be made, its decision must be final, otherwi.se no transfer of title would be possible, however advantageous it might be to the wards.

Bozman's theory seems to oveilook the fact that Indians, except per- haps in a few isolated cases, never claimed individual or exclusive personal titles in fee to given and designated portions of the soil. What, therefore, is held in common may, it would seem, by the joint action of those interested, be transferred or alienated.

However, it is not our object at present to theorize as to what should or might have been done, but to state what was done in this respect, and thus to show on what policy the various territorial cessions ^nd reservations mentioned in the present work are based.

The correct theory on this subject appears to be so clearly set forth by John (^uincy Adams in his oration at the anniversary of the Sons of the Pilgrims, December 22, 1802, that his words are quoted, as follows :

There are moralists who have (juestioned the right of Europeans to intrude npou the possessions of the aborigines in any case and under any limitations whatsoever. But have they maturely considered the whole subject? The Indian right of posses- sion itself stands, with regard to the greatest part of the country, upon a ques- tionable foundation. Their cultivated fields, their constructed habitations, a space of ample sufficiency for their subsistence, and whatever they had annexed to them- selves by person il labor, was undoubtedly by the laws of nature theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has acci- dentally ranged in quest of preyf ,Sliall the liberal bounties of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the connnou mother, amply adequate to the nourish- ment of millious, be claimed exclusively by a few huudre Is of her offspring? !<hall the lordly savage not only disdain the virtues and enjoyments of civilization him- self, but shall he control the civilization of a world? Shall heforbid the wilderness to blossom like the rose? Shall he forbid the oaks of the forest to fall before the ax of industry and rise again transformed into the habitations of ease and elegauce? Shall he doom an immeuse region of the globe to perpetual desolation, and to hear

' Hi^ilory of Maryland, p.

THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 537

the bowlings of tlie tiger and the wolf silence forever the voice of human gladness? Shall the fields and the valleys which a beneficent God has framed to teem with the life of innumerable multitudes be condemned to everlasting barrennessf Shall the might}' rivers, poured out l)y the hands of nature as channels of communication between numerous nations, roll their waters in sullen silence and eternal solitude to the deep? Have hundreds of commodious harbors, a thousand leagues of coast, and a boundless ocean been spread in the front of this land, and shall every purpose of utility to which they could apply be prohibited by the tenant of the woods? No, generous philanthropists! Heaven has not been thus iucousistent in the works of its hands. Heaven has not thus placed at irreconcilable strife its moral laws with its physical creation.'

In order to show the correctness of the views exjiressed by Adams in tlie above quotation, and the absurdity of admitting the Indians' claim to the absolute right of the soil of the whole country, some com- parisons are here introduced. These are simple comparisons between the Indian population and the extent of territory claimed by them.

Perhaps the best estimate of the Indian population of the United States (exclusive of Alaska), at different periods up to 1S70, are those given by Honorable John Eaton.^ His summary is as follows:

1820. Report of Morse on Indian Aft'airs 471,036

182.5. Report of Secretary of War 129,366

1829. Report of Secretary of War 312,930

1834. Report of Secretary of War 312,610

1836. Report of Superintendent of Indian Affairs 253, 464

1837. Report of Superinti-ndent of Indian Affairs 302, 498

18.50. Report of H. R. Schoolcraft 388,229

18.53." Report of United States Census, 1850 400,764

1855. Report of Indian Office 314,622

1857. Report of H. R. Schoolcraft 379,264

1860. Report of Indian Office 254, 300

1865. Report of Indian Office 294,574

■1870. Report of United States Census 313,712

1870. Report of Indian Office 313,371

1875. Report of Indian Office ■. 305,068

1876. Report of Indian Office 291,882

Examining these estimates at the different dates, we see that the average, in round numbers, is 315,000. Now, assuming this to be a correct estimate, and allowing five persons to a family, this would give 03,000 as the whole number of Indian families in the United States. Assuming the area of the United States, exclusive of Alaska, to be 3,025,000 square miles, this would give to each Indian family a manor of 48 square miles, or 30,720 acres. Now, supposing, for further illustra- tion, that the families were distributed uniformly over the whole terri- tory, the state of lihode Island, which now supports a population of 345,506 persons, or 09,101 families (allowing five persons to a family), would be apportioned among 20 Indian families; the state of Delaware would be allotted to but 43, and the whole state of New York, which

' Report of the Commissioner of IndiaD Afiairs for 1867, p. 143. ■'Ibid., for 1877.

538 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann.IS

now supports more than a million families, would be assigned to 1,025 lordly savages.

It is apparent, therefore, that the requirements of the human race and the march of civilization could not permit sufh an apportionment of the soil of the American continent as this, even were the estimates trebled. It is true that practically no such equal distribution of the lands as that mentioned would be possible. Moreover, it is also true that some portions are unsuitable for the ordinary purposes of life; but the supposition given will be understood as an illustration of the theory of the Indian claim, and is correct in principle. That a popula- tion whose territorial needs would be amply supplied by the area embraced in the single state of Illinois should, on the score of being the first occupants of the country, be allowed the exclusive use of tlie whole territory of the United States is inconsistent with any true theory of natural rights. Moreover, it is not required by humanity, religion, nor any principle of human rights. This must be conceded. But what is the necessary consequence of such concession?

There were few, if any, areas in the United States which the Indians did not claim. If this claim could not be admitted in its entirety as a just and valid one; if it could not be admitted as a just bar to any settlements by other iieoi)les; if civilization could not consent to such a claim, where should the restriction begin? How should it be accomplished! Who should fix the metes and bounds and who decide the proper apportionment? This brings us back precisely to the point which the European settlers on the continent were forced to meet, and where the governments to which they pertained were forced to act, whether they did so in accordance with a settled theory and policy or not.

FOREIGN POL,ICY TOWARB THE INDIANS

In the preceding section attention is called to the principle main- tained by the United States and by other civilized governments in regard to the rights of the Indians to the soil. As theory and practice are not necessarily identical and are sometimes quite variant from each other, reference will now be made to the policy and methods adopted in putting into practical operation this theory. However, to cover the range of acquisitions from the Indians of land within the Iwunds of the United States, it will be necessary to refer not only to the policy of the Government since the adoption of its constitution, but also to that of the colonies and of the other powers from which territory has been obtained by the United States.

It will perhaps be best to begin with the policy of the powers from which territory has been obtained by the United States since the adop- tion of the constitution. By so doing the policy adopted by the col- onies can be connected with that of tlie United States without being interrupted by reference to that of other governments.

THOMAS] FOREIGN POLICY TOWARD THE INDIANS 539

THE SPANISH POLICY

Although the cruelty of the Spaniards in their treatment of the Indians during the conquest of Mexico and Central America is prover- bial, yet an examination of the laws of Spain and ordinances of the King show that these acts were not only not warranted thereby, but in direct conflict therewith. So early as 1529, in the commission consti- tuting Cortes captain-general of 'New Spain, he was directed to give his i)rincipal care to the conversion of the Indians; that he should see that no Indians be given to the Spaniards to serve them; that they paid such tribute to His Majesty as they might easily aflbrd, and that there should be a good correspondence maintained between the Sjian- iards and the Indians and no wrong offered to the latter either in their goods, families, or persons. Bishop Don Sebastian Ramirez, who was acting governor under Cortes subsecjuent to his commission, earnestly endeavored, be it said to his honor, to put into i)ractice these humane orders. We are informed by Antonio de Herrera' that he not only abrogated the enslavement of any Indians whatsoever, but also took care that none of them should be made to carry burdens about the country, ''looking upon it as a labor fit only for beasts." He was no less exact in the execution of all the ordinances sent by the Council of Spain for the ease, improvement, and conversion of the natives. " By that means," adds the old historian, ''the Country was much improv'd and ail Tilings carried on with Equity, to the general Satisfaction of all good Men."

The laws enacted for the government of the " Kingdoms of the Indies " were still more pointed in tlie same direction, and fully recognized the rights of the Indians to their landed possessions. However, as will become apparent from an examination of these, no claim by the natives to unoccupied lands or uninhabited territory appears to have been rec- ognized. Such territory was designated " waste lands," and formed part of the royal domain. As evidence of this the following brief extracts from the liecopiladon de las Leyes de los Reynos de las Indias are presented:^

We decree and command, that the laws and good customs anciently in force in the Indies, for their good government and police, and the usages and customs observed and retained from the introduction of Christianity among them, which are not repugnant to our sacred religion, or to the laws coutaineil in this book, and to those which have been framed anew, be observed and fultilled ; and it having become expedient to do so, we hereby approve and confirm them, reserving to ourselves the power of adding thereto whatever we shall think fit and will appear to us necessary for the service of (Jod our Lord, and our own, and for the protection of, and Chris- tian police among, the natives of those Provinces, without prejudice to established usages among them, or to their good and wholesome customs and statutes. — Lih. II, tit. 1, law 4, vol. I, p. :.'1S.

It being our wish that the Indians be protected and well treated, and that they be

' Historia General, dec. hi. bk. 7, chap. 3 (Stevens' translation).

"From Law3, U. S. Treaties, etc., Respecting Public Lands, vol. ii, 1836.

540 INDIAN LAND CESSIOXS IN THE UNITED STATES Ieth ann. 18

not molested nor injured in their person or property ; We command that in all cases, and on all occasious, when it shall he proposed to iiistitute an inquiry, whether any injury is to accrue to any person in cou.seiiueuce of any grant of land, whether for tillage, pasture, or other purposes, the Viceroys, Presidents, and .ludges shall cause summonses to he directed to all persons whom it may really concern, and to the Attorneys of our Koyal Audiences, wherever Indians may he interested, in order that all and every person may take such measures as may he expedient to protect his rights against all injuries which might result therefrom.— /.ifi. //, tit. IS, law 36, vol. I, p. 41;J.

Whereas some grazing farms, owned by Spaniards for the use of their cattle, have been ]irodnctive of injury to the Indians, by being located upon their lauds, or very near thiir fields and settlements, whereby said cattle eat and destroy their produce and do them other damage: We command that the .Judges who shall examine the lands. mal<e it their duty to visit such farms, without previous request to do so. and ascertain whether any injury accrues therefrom to the Indians or their property; and, if so. that, after due notice to the parties interested, they forthwith, and Dy sum- mary or legal process, according as they may think most tit, remove them to some other place without damage or prejudice to any third person. — Lib. II, tit. 31, law 13, vol. I. p. 4S4.

Should the natives attempt to oppose the settlement [of a colony], they shall be given to understand that the intention in forming it, is to teach them to know God and His holy law. by which they arc to be saved; to preserve friendship with them, and teach them to live in a civilized .state, and not to do them any harm or take from them their settlements. They shall be convinced of this by mild means, through the interference of religion and priests, and of other persons appointed by the Governor, by means of interpreters, and by endeavoring by all possible good means, that the settlement may be made in peace and with their consent; and if, notwithstanding, they do withhold their consent, the settlers, after having notiKed them pursuant to Law 9, Tit. 4, Lib. 3, shall proceed to make their settlement with- out taking any thing that may belong to the Indians, and without doing them any greater damage than shall be necessary for the protection of the settlers and to remove obstacles to the settlement. — Lib. IF, tit. 7, law 23, vol. II, p. 24.

We command that the farms and lands which may he granted to Spaniards, be so granted without prejudice to the Indians; and that such as may have been granted to their prejudice and injury be restored to whoever they of right shall belong. — Lib. IT, til. 13, law ii, vol. II, p. 41.

In order to avoid the inconveniences and damages resulting from the sale or gift to Spaniards of cabaUerias or peoniaa, and other tracts of laud, to the prejudice of the Indians, upon the suspicious testimony of witnesses, we order and command, that all sales or gifts shall he made before the Attorneys of our Royal Audiencias, to be sum- moucd for that purpose, who shall be bound to examine, with due care and diligence, the character and depositions of witnesses; and the Presidents and Audiences, where they shall administer the government, shall give or grant such lands by the advice of the Board of Treasury, where it shall appear that they belong to us, at auction, to the highest bidder, as other estates of ours, and always with an eye to the benefit of the Indians. And where the grant or sale shall be made by the Viceroys, it is our will that none of the officers above mentioned shall interfere. Upon the letters which shall lie granted to the parties interested, they shall sue out coulirmations within the usual time prescribed in cases of grants of Indians [tiioomieiidas de In(lios].—Lib. IV, tit. 12, law IC, vol. II, p. 43.

In order more eft'ectually to favor the Indians, and to prevent their receiving any injury, we command that no composition shall be admitted of lands which Spaniards shall have acquired from Indians, in violation of our roj'al letters and ordinances, and which shall he held upon illegal titles: it being our will that the Attorneys- Protectors should proceed according to right and justice, as required by letters and

THOMAS] SPANISH POLICY TOWARD THE INDIANS 541

ordinances, in procuring such illegal contracts to be aunulleil. And we command the Viceroys, Presidents, and Audiences to grant tbem their assistance for its entire execution. — Lib. IV, til. /.', law 17, vol. II, p. 43.

We command that the sale, grant, and composition of lands be executed with such attention, that the Indians shall be left in possession of the full amount of lauds lielonging to them, either singly or in communities, together with their rivers aud waters ; and the lauds which they shall have drained or otherwise im[iroved. whereby they may, by their own industry, have rendered them fertile, are reserved in the first place, and can in no case he sold or aliened. And the .fudges who shall have been sent thither, shall specily what Indians they may have found on the land, and what lands they shall have left in possession of each of the elders of tribes, cacitiues, governors, or connnunities. — Lib. IV. tit. IJ, law 17 [1S'\, vol. II, p. i-i. , No one shall be admitted to make composition of lands Avho shall not have been in possession thereof for the term of ten years, althongb he should state that he is in possession at the time; for such circumstance by itself is not sutticient; and communities of Indians shall be admitted to make such compositions in preference to other private individuals, giving them all facilities for that purpose. — Lib. IV, til. 12, law 19, vol. II, p. 44.

Whereas the Indians would sooner and more willingly be reduced into settle- ments, if they were allowed to retain the lands and iuiprovenieuts which they may possess in the districts from which they shall remove; we command that no altera- tion be made therein, and that the same be left to tbem to he owned as before, iu order that they may continue to cultivate tbem and to disjiose of their produce. — Lib. VI, tit. 3, law 9, vol. II, p. 209.

According to the royal ordinance, given at San Lorenzo el lieal, October 15, 1754, it was decreed tliat, ''The Judges and Otticers, to whom Jurisdictiou for the sale and composition of the royal lands \re(iIe>igos\ may be sub-delegated, shall proceed with mildness, gentle- ness, and moderation, with verbal and not judicial proceedings, in the case of those lands which the Indians shall have possessed, and of others when required, especially for their labor, tillage, and tending of cattle."

It appears, however, that the Spanish government never accepted the idea that the Indians had a possessory right to the whole territory, but only to so much as they actually occupied, or that was necessary for their use. Tiiis policy toward the natives seems to be indicated by the following extract:

Whereas we have fully inherited the dominion of the Indies; and whereas the waste lands and soil which were not granted by the Kings, our predecessors, or by ourselves, in our name, belong to our ))atrimony and royal ciown. it is expedient that all the land which is held without just and true titles be restoreil, as belonging to ns, in order that we may retain, before all things all the lauds which may appear to us and to our Viceroys, Audiences, and Governors, to be necessary for public squares, liberties, [eji'rfos.] reservations, lproi>iox,'\ jiastures. and commons, to be granted to the villages and I'ouucils already settled, with due regard as well to their present condition as to their future state, and to the increase they may receive, and after distributing among the Indians whatever they may justly want to culti- vate, sow, and raise cattle, confirming to them what tbey now hold, and granting what they may want besides — all the remaining land may be reserved to us, clear of any incumbrance, for the purpose of being given as rewards, or disposed of according to our pleasure. — Lib. IV, tit. 12, law 14, vol. II, p. 42.

542 IXDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

The same idea appears to be embraced in law IS, lib. 4, tit. 12, given above; also in tbe following sections in the " Regulations of intendant Morales regarding grants of land:"

24. As it is imiiossible, considering all the loc.il circumstances of these provinces, that all the vacant lands hclonging to the domain should bo sold at auction, as it is ordaiued by the law loth, title 12th, book 4th of the collection of the laws of these Kingdoms, the sale shall be nuide according as it shall be demanded, with the inter- vention of the King's Attorney for the Board of Finances, for the price they shall be taxed, to those who wish to j)urchase; understanding, if the purchasers have not ready money to pay, it shall be lawful for them to purchase the said lands at redeem- able quit-rent, during which they shall paj' the live per cent, yearly.

31. Indians who possess lands within the limits of the Government shall not, iji any manner, be disturbed; on the contrary, they shall bo protected and supported; and to this, the Commandants, Syndics, and Surveyors, ought to pay the greatest attention, to conduct themselves in consequence.

32. The granting or sale of any lands shall not he proceeded in without formal information having been previously received that they are vacant; and, to avoid injurious mistakes, wo premise that, beside the signature of the Commandant or Syndic of the District, this information ought to be joined by that of the Surveyor, and of two of the neighbors, well understanding. If, notwithstanding this necessary precaution, it shall he found that the laud has another owner besides the claimant, and that there is sufficient reason to restore it to him, the Commandant, or Syndic, Surveyor, and the neighbors, who have signed the information, shall indemnify him for the losses he has suffered.'

In 1776 one Maurice Conway, who had made a purchase on New Orleans island from the Houma Indians, which purchase liad been approved, asked of the Spanish authorities an additional grant by wliich he might obtain some timber land adjoining thereto. This was granted by Onzaga with the following restrictions: "Provided it be vacant, and that no injury is thereby done to any of the adjoining inhabitants; to which effect he shall establish his boundaries and lim- its; and of the whole proceedings he shall make a process verbal, of which he shall make a return to ns, signed by liimself and the parties, in order to issue the complete title, in due form, to the claimant."

In carrying out the orders to mark off this grant the Houma chief was taken upon the ground in order that he might see that the lands of his tribe were not encroached on.

It does not appear that the Spanish government at any time adopted the policy of purchasing the Indian title, though clearly and distinctly recognizing it, to the hinds they occupied. It, however, seems to have been a rule that the Indians should be compensated for their village sites and lands in actual use which were taken from them. This, how- ever, was done usually by granting them other lands. Grantees were usually the purchasers of the Indian title where it was deemed neces- sary tliat this should be extinguished.

The foregoing laws and ordinances applying generally to the Spanish possessions known as "New Spain" were, of course, equally applica- ble to Louisiana and Florida and other portions of territory acquired

■Laws Belating to Public Lauds, 1828, pp. 984-985.

THOMAS] SPANISH POLICY TOWARD THE INDIANS 543

by tlie United States, directly or indirectly, from Spain. However, as West Florida was a depeudency of Louisiana, wbicli most of the time had its own government, and East Florida was attached to the inteiidency of Cuba, there were some ditfereuces in the local adminis- tration of the laws and in the customs adopted in dealing with the Indians.

Some two or three commissions were authorized by Congress to examine into and decide in regard to land claims in Florida derived from Spanish grants. Little or nothing can be derived from their reports in regard to the method of extinguishing the Indians' claim. Two members of the tirst commission were so clearly personally inter- ested in several of these grants that the third member (Alexander Hamilton) felt himself compelled to resign and to protest against the conclusions reached. The only fact brought out by them bearing on the ([uestion before us is that grants were, during the closing years of Spanish rule, made in a most reckless manner and apparently with little or no attention to the rights of the Indians, the designation "vacant lands" being considered a sufiQcient gnjund for making a grant. The official surveyor in many ca.ses did not even run around the boundary of a grant, nor pretend to ascertain whether it was on Indian territory. This, however, was not in accordance with the law and royal policy, as appears from the statement of Juan .lose de Estrada, governor pro tempoie of Florida (July 29, 1811).' Writing to the Marques de Someruelos, in regard to a I'equest of one Don Cristoval Gios for a large grant along the southwest coast of Florida for plant- ing a colony, he remarks:

But the greatest objection to the project of Don Cristoval Gios [who proposed planting a colony] remaines to be examined, and it is, that the lands he asks the cession of are not public; they are the property of the Indians, who look with much interest to any usurpation of them, however small it may be. The preserva- tion of their lands is one of the bases of our friendship with them; and in .all the liaraugucs prouounced liy the Governors of this Province, they have been .always promised the same treatment and privileges they had under the British Government. That Government ruled the land as a sovereigu, but left the Indians the property of the soil, except those places which they had acf|uired from the aborigines by pur- chase, or by a solemu treaty made with the Chiefs The Anglo-Americans follow this same rule with the Indians who are under their domiuion, and it is certain that the same rule has been religiously observed in the two Florldas, no white man being permitted to purchase laud from the Indians without the intervention of the Govern- ment to prevent frauds, and prohibiting strictly that any person should establish himself iu the territory known as theirs.

He further adds:

In virtue of this, I am of opinion that, unless Don Cristoval Gios obliges himself to purchase from the Indians the lauds he pretends to, and that said purchase is made Avith the knowledge and iu the preseuce of this Government, and interpreters appointed by it, his project is rather directed to compromise the tranquility of this province, and, therefore, that perpetual silence on the subject should be imposed upon him.

'Laws etc., Relating to Public Lands, vol. n (1836), appendix, pp. 233-234.

544 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.axn. 18

It \yould a[)pear from this that when the hiw was complied with, those desirinji' lands which were iu possession of the Indians were required to pnrchase them from the tribe. This was to be done iu the presence of the surveyor or some one authorized to act for the governor of the province, and it was required that there should be an interpreter approved by the governor. It was al.so requisite that the dued of purchase should be approved. Whether otticial permission to make the purchase was necessary does not appear. That the governor, or one exercising authority iu the name of the King, had the power to refuse approval of such purchase is certain, although this seems to have been doubted by some of the commissioners appointed by the United States to examine into the Spanish claims.

The custom in Louisiana was substantially that described by Estrada in the above-quoted letter.

According to the report of the commissioners on the "Opelousas claims,'' the Spanish functionaries seem to have made a distinction between Indians who had partaken of the rite of baptism and other Indians. The former appear to have been considered capable of hold- ing and enjoying lands in as full and complete a manner as any other subjects of the Crown of Spain. Sales by these Indians were generally for small tracts, such as an Indian and his family might be supposed capable of cultivating, and being passed before tlie proper Spanish officer and tiled for record, were considered valid by the usages of the Spanish government without ratification being necessary. But pur- chases from other Indians, as those from a tribe or chief, were not complete until they had been ratified by the governor of the jjroviuce, the Indian sale transferring the Indian title and the ratification by the governor being a relin(iuishment of the right of the Crown.

The testimony of Mr Charles L. Trudeau, many years surveyor- general of the province of Louisiana under the Spanish government, in regard to the custom in tliis respect, which ajipears to have been relied on by the commissioners, is as follows:

The deponent knows of no ortlinant<-s or regulations under any Governor of Lou- isiana, except O'Keilly.by whiib tlie Indians, inbabitinj; lands in the province, were limited in their possessions to one league square about their villages, but this regu- lation has not been adhered to by any of his successors. The deponent knows that the custom was, that when a tribe of Indians settled a village by the consent of the Government, that the chief tixid the boundaries, and where there were one or more neighboring villages, the respective chiefs of those villages agreed upon aiid fixed the boundaries between themselves, and when any tribe sold out its village, the I'om- mandant uniformly made the conveyance according to the limits i)ointed out by tlie chief. The lauds claimed by the Indians around their villages, were always considered as their own, and they were always protected in the unmolested enjoyment of it by the Government against all the world, and has always passed from one generation to another so long as it was possessed by thim as their own property. The Indiaus always sell their land with the consent of the Government, and if, after selling their village and the lands around it, they should, Ijy the permission of the Goverumeut establish themselves elsewhere, they might again sell, having first obtained the per- mission of the Government, and so on, as often as such permission was obtaineil, and

THOMAS] FRENCH POLICY TOWARD THE IXDIAXS 545

uo instauce is knowu where such perniissiou has ever been refused or withheld. These sales were passed before the Coiumandaiit of the District, and were always good and valiil, without any order from the Commandant.'

It appears tbat Governor O'lieilly ordained that no grant for land in Opelousas, Attacapas, or Natchitoches could exceed one league square. It seems that this ordinance was to have a retroactive effect. Hence, purchases which had been made from Indians were reduced to this amotmt. but the suri)lusage, instead ot reverting to the Indians, became a part of the royal domain.

Finally, we quote the following from the commissioners' report, as bearing on the jioint now under discussion:

If it should be asked, what evidence exists of the law of prescription operating to the extinction of the Indian title to lands in Louisiana, it might bo replied, that the evidence is to be found in the varions acts of the Spanish Government, in relation to tlie Indians, evincing that the (iovernmentrccdfi.iized no title in them, iuilependently of that derived from the crown, a mere right of occupancy at the will of the Govern- ment; else why was the sanction of the Government necessary to all sales passed by Indians, which may be clearly established by a recurrence to written documents, and the testimony of Messrs. Trudeau, De Blanc, and Laypard? and why was it not neces- sary to liave such sanction of the sales made by other subjects of the Spanish Gov- ernment ? The force and effect of prescription, in abolishing the Indian title to lauds in Louisiana, is further established by the Indians permitting themselves to he removed from plaie to place by Governmental authority. By their condescending, in some cases, to ask permission of the Government to sell their lands, and, when that permission was not solicited, assenting to the insertion of a clause in the deeds of sale, expressly admitting that their sales could be of no validit.y without the ratiti- catiou of the Government, -

THE FREN'CH POLICY

A somewhat thorough examination of the documents and histories relating to French dominion in Ciinada and Louisiana fails to reveal any settled or regularly defined policy in regard to the extinguishment of the Indian title to land. Nevertheless, it is fair to assume that there was some policy in their proceedings in this respect, but it does not appear to have been set forth by legal enactments or clearly made known by ordinances. It seems, in truth, to have been a question kei)t in tlic background in their dealings with Indians, and brought to the front only in their contests with other powers in regard to territory. It would seem, although not clearly announced as a theory or policy, that it was assumed, when a nation or tribe agreed to come under French dominion, that this agreement carried with it the title to their lands.

In the letters patent given by Louis XV to the " Western Company" in August 1717, the following rights and privileges are granted:-'

Sec. V. With a view to give the said Western Company the means of forming a firm establishment, and enable her to execute all the speculations she may under- take, we have given, granted, and conceded, do give, grant, and concede to her, by

' Laws, U. S. Treaties, etc.. respectiDg Public L-inds, vol. n (1836), app..p. 222'.

! Ibid., p. 224".

^B. F, French, Hislnrical CoUectioDs of Louisiana, pt. 3, 1851, pp. 50, 51.

546 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann.18

these present letters ami forever, all tlie lauds, coasts, ports, havens, and islands Tvhich compose onr province of Louisiana, in the same way and extent as we have granted them to M. Crozat by our letters i)atent of 14th September 1712, to enjoy the same in full property, seigniory, and jurisdiction, keeping to ourselves no other rights or duties than the fealty and liege homage the said company shall be bound to pay us and to the kings our successors at every now reign, with a golden crown of the weight of thirty marks.

Sec. VI. The said company shall be free, in the said granted lands, to negotiate and make alliance hi our name with all the nations of the land, except those which are dependent on the other powers of Europe; she may agree with them on such conditions as she may think fit, to settle among them, and trade freely with them, and in case they insult her she may declare war against them, attack them or defend herself by means of arms, and negotiate with them for peace or for a truce.

By section 8 authority is given to the company "to sell and give away the lands granted to her for whatever quit or ground rent she may think fit, and even to grant them in freehold, without jurisdiction or seigniory."

In section 53 it is declared:

Whereas in the settlement of the lands granted to the said company by these present letters we have chiefly iu view the glory of God by procuring the salvation of the Indian savage and negro inhabitants whom we wish to be instructed in the true religion, the said company shall be bound to build churches at her expense in the places of her settlements, as likewise to maintain there as many approved clergymen as may be necessary.

Substantially the same privileges, powers, and requirements were provided for in the grant made ninety years before (April, 1627), through Cardinal Richelieu's influence, to the Company of One Hun- dred Associates, while France was struggling, through the leadership of Champlain, to obtain a pernuineiit settlement on the St Lawrence.'

Although these are the strongest passages having any bearing on the point indicated which have been found in the early grants, it must be admitted that reference to the Indian title is only to be inferred. The policy both in Louisiana and Canada seems to have been to talce possession, at first, of those points at which they desired to make settle- ments by peaceable measures if possible, though without any pretense of purchase, thus obtaining a foothold. Eitlier preceding or following such settlement, a treaty was made with the tribe, obtaining their con- sent to come under the dominion of the King of France and acknowl- edging him as the only rightful ruler over themselves and their territory.

As an illustration of this statement, attention is called to the follow- ing paragraph : ^

What is more authentic in this matter is the entry into possession of all those Countries made hy M'. Talon, Intendant of New France, who in 1671, sent Sieur de S'. Lusson, his Subdelegate, into the country of the Stauas, who invited the Depu- ties of all the tribes within a circumference of more than a hundred leagues to meet

' J. G. Shea, Charlevoix's Hist. New France, vol. n, p. 39.

'Denonville, Memoir on the Freoch Limits in North America, New York Colonial Documents, vol. IX, 1). 383.

THOMAS] FRENCH POLICY TOWARD THE INDIANS 547

at S'. Mary of the .Sault. On the 4"' of June, of the same year, fourteen tribes liy their ambassadors repaired thither, and in their presence and that of a number of Frenchnii'U, Sieur de S'. Lusson erected tliere a post to which lie affixed the King's arms, and declared to all those people that he had convoked them in order to receive them into the King's protection, and in his name to take possession of all their lands, so that henceforth ours and theirs should be but one; which all those tribes very readily accepted. The commission of said Subdelegate contained these very words, viz' That he was sent to take possession of the countries lying between the East and West, from Montreal to the South Sea, as much and as far as was in his power. This entry into possession was made with all those formalities, as is to bo seen in the Relation of 1671, and more expressly in the record of the entry into possession, drawn up by the said Subdelegate.

Although this is used by Denonville in this place as an evidence of the title of France as against that of England, yet it shows the French custom of taking possession of new countries. Although not ditiering materially from the method adopted in similar cases by other govern- ments, yet it would seem from their dealings with the Indians that the French considered this cerem(my, where the Indians were persuaded to join in it, as absolutely passing to the Crown their i)ossessory right.

The commission to Marquis de Tracy (November 10. 1603), bestowing on him the government of Canada, contains the following passage,' which indicates reliance on the power of arms rather than in jieaceful measures :

These and other considerations Us moving. We have constituted, ordained and established, and by these Presents signed by our hands, do constitute, ordain and establish the said Sieur de Prouville Tracy Our Lieutenant General in the entire extent of territory under Our obedience situate in South and North America, the continent and islands, rivers, ports, harbors and coasts discovered and to bo discov- ered by Our subjects, for, and in the absence of, said Count D'Estrades, Viceroy, to have command over all the (iovernors, Lieutenant Generals by Us establisheil, in all the said Islands, Continent of Canada, Acadic, Newfoundland, the Antilles etc. like- wise, over all the Officers and Sovereign Councils established in all the said Islands and over the French Vessels whi<h w ill sail to the said Country, whether of War to Us belonging, or of Jlerchants, to tender a new oath of lidelity as well to the Governors and Sovereign Councils as to the three orders of the said Islands: enjoiuiug said Governors, Officers and Sovereign Councils and others to recognize the said Sieur de Prouville Tracy and to obey him in all that he shall order them; to assemble the cpnunonalty when ucccssary; cause them to take up arms; to take cognizance of, settle and arrange all ditl'erences which have arisen or may arise in the said Country, either between Seigniors and their Superiors, or between private inhabit- ants; to besiege and capture places and castles according to the necessity of the case; to cause pieces of artillery to be dispatched and discharged against them; to establish garrisons where the importance of the place shall demand them; to con- clude peace or truces according to circumstances either with other Nations of Europe established in saul Country, or with the barbarians; to invade either the continent or the Islands for the purpose of seizing New Countries or establishing New Colo- nies, and for this purpose to give battle and make use of other means he shall deem proper for such uudertaking; to command the people of said Country as well as all our other Subjects, Ecclesiastics, Nobles, Military and others of what condition soever there residing; to cause our boundaries and our name to be extended as far as he can, with full power to establish our authority there, to subdue, subject and

^New York Colonial Documents, vol. IX, p. 18.

548 INDIAN LAND CESSIONS IN THE UNITED STATES [eth ann. 18

exact obertienoe from all the people of said Countries, invitiiij; tbeni by all the most leuieut means possible to the knowlcilge of God, and the light of the Faith and of the Catholic Apostolic and Roman Keligion, and to establish its exercise to the exclnsion of all others; to ilefend the said Countries with all his power; to main- tain and preserve the said people in peace, repose and trampiility, and to command both on sea and land; to order and cause to be executed all that he, or those he will appoint, shall .judge fit and proper to be done, to extend and preserve said places under Our authority and obedience.

It will be seen from tbis tbat tbe King's reliance in accomplisbing tbe end he bad in view was on force rather than on fair dealing with the natives. Nowhere in this commission or in any of the grants is there any direct recognition of the Indians' possessory title, or an expressed desire tbat tbey be secured in i)ossession of the lauds they occupy, or that are necessary for their use. It is well known to all who are familiar witli till' history of French dominion in Louisiana and Canada, that resort was often made to tlic policy of secretly fomenting quarrels between Indian tribes, and thus, by wars between themselves, so weaken them as to render it less difiic^ilt to bring them under control.

That no itleaof purchasing or jjretending to purchase the possessory right of the. natives had been entertained by the French up to IGSO, is evident from a passage in the letter of M. de Denonville to M. de Seigneliiy, May 8, lO.SG,' where he states: "The mode observed by the English with the Iroquois, when desirous to form an establishnicnt in their neighborhood, has been, to make them presents for the purchase of the fee and property of the land they would occupy. What I con- sider most certain is, that whether we do so, or have war or ]ieace with them, they will not suffer, except most unwillingly, the construction of a fort at Niagara." That the war policy was the course adopted is a matter of history.

How, then, are we to account for the fact that the relations of the French with the Indians under their control were, as a general rule, more intimate and satisfactory to both parties than those of other nations ? Parkman has remarked that ' The power of the priest estab- lished, that of the temporal ruler was secure. . . . Spanish civilization crushed the Indian; English civilization scorned and neglected him; French crvilization embraced and cherished him.'' Although this can not be accepted as strictly correct in every respect, yet it is true that intimate, friendly relations existed between the French and their Indian subjects, which did not exist between the Spanish or English and the nati\e poi)nlation. However, this can not be attributed to the legal enactments or delined policy of the French, but rather to their i)racti- cal methods.

Instead of holding the natives at arm's length and treating them only as distinct and inferior people and (]uasi independent nations, tlie French policy was to make them one with their own people, at least in Canada. This is expressly declared in the following extracts:

I New York Colouial Documents, vol. IX, p. 289.

THOMAS] THE FRENCH AND THE ENGLISH POLICY 549

Colbert, writiug to Talon, April 0, IBGti, says:

In ordur to streiigtbeii the Colony iu the manner you propose, by bringing the isolated settlements into parishes, it appears to me, without waiting to depend ou the new colonists who may be sent trom France, nothing would contribute more to it than to endeavor to civilize the Algonquins, the Hurons and other Indians who have iMiibraccd Christianity, and to induce them to come and settle in common with the 1 reuch, to live with them and raise their children according to our manners and customs.'

In liis ie])ly, some seven inouths later, M. Talon informs Colbert that lie lias endeavored to put his suggestions into practical operation under police I emulations.

In aiiotlier letter, dated April 6, KifiT, Colbert writes to Talon' as follows:

Recommendation to monlil the Indians, settled near us, after our manners and language.

1 confess that I agreed with you that very little regard has been paid, up to the present time, iu New France, to the police and civilization of the Algonquins and Hurons (who were a long time ago subjected to the King's domination,) through our neglect to detach them from their savage customs and to oblige them to adopt ours, especially to become ac<iuaiiited with onr language. On the contrary, to carry on some traffic with them, our French have been necessitated to attract those people, especially such as have embraced Christianity, to the vicinity of our settlements, if possible to mingle there with them, iu order that through course of time, having only but one law and one master, they might likewise constitute only one people and one race.

That this was the policy favored by the King is expressly stated by Du Chesneau in his letter to M. de Seignelay, November 10, 1G79. "1 comiiiunicated," he says, "to the Religious communities, both male and female, and even to private persons, the King's and your intentions regarding the Frenchiticatiou of the Indians. They all promised me to use their best efforts to execute them, iiiid I hope to let you have some news thereof next year. 1 shall begin by setting the example, and will take some young Indians to have them instructed."'

In another letter to the same person, dated November 13, 1C81, he says: ''Amidst all the plans jiresented to me to attract the Indians among us and to accustom them to our manners, that from which most success may be anticipated, without fearing the inconveniences common to all the others, is to establish Villages of those people iu our midst. '"^

That the same policy was in vogue as late as 1704 is shown by the fact that at this time the Abnaki were taken under French protection and placed, as the records say, "In the center of the colony."

THE ENGLISH POLICY

In attempting to determine from history and the records the British policy in dealing with the Indians iu regard to their possessory rights,

' Xew York Clolonial Documents, vol. ix, p. 43. ^ [bid., ]i. 136.

nbiU.,p. 59. «Ibid., p. 150.

550 INDIAN LAND CESSIONS IN THE UNITED STATES Ieth.axn. 18

the iuvestigator is somewhat surprised to find (except so far as they relate to the Dominion of Canada and near the close of the govern- ment rule over the colonies) the data are not only meager but mostly of a negative character. It must be understood, however, that this statement refers to the policy of the English government as distinct from tlie methods and policy of the dift'erent colonies, which will later be noticed.

The result of this investigation, so far as it relates to the possessions formerly held by Great Britain within the present limits of the United States, would seem to justify Parkman's statement that "English civilization scorned and neglected the Indian," at least so far as it relates to his possessory right. It is a significant fact that the Indian was entirely overlooked and ignored in most, if not all, of the original grants of territory to companies and colonists. Most of these grants and charters are as completely void of allusion to the native population as though the grantors believed the lands to be absolutely waste and uninhabited.

For example, the letters patent of James I to Sir Tiiomas Gage and others for " two several colonies," dated April 10, 1606, although grant- ing away two vast areas of territory greater than England, inhabited by thousands of Indians, a fact of which the King had knowledge both officially and unofficially, do not contain therein the slightest allusion to them.

Was this a mere oversight? More than a hundred years had elapsed since the Oabots had visited the coast; Raleigh's attempted coloniza- tion twenty years before was well known, and the history of the dis- covery and con(iuest of Mexico had been proclaimed to all the civilized world. Still the omission might be considered a mere oversight but for the fact that his second charter (May 23, 1609), to "The Treasurer and Company of Adventurers and Planters of the City of London for the Colony of Virginia," and that of JMarch 12, 1011-12, are e(iually silent on this important subject. It may be said, and no doubt truly, that the Crown merely granted away its title in the lands, its public domain, leaving the grantees to deal with the inhabitants as they might find most advantageous. Nevertheless this view will not att'ord an adequate excuse for the total disregard of the native occupants. The grants were to subjects, and the rights of sovereignty were retained.

The so-called "Great Patent of New England," granted "absolutely" to the "said council called the council established at Plymouth, etc.," the "aforesaid part of America, lying and being in breadth from forty degrees of northerly latitude from the equinoctial line, to forty-eiglit degrees of said northerly latitude inclusively, and in length of and ■within all the breadth aforesaid throughout the main land Irom sea to sea, together also with all the firm land, soils, grounds, havens, ports, rivers, waters, fishings, mines, and minerals," yet there is not the

THOMAS] ENGLISH POLICY TOWARD THE INDIANS OOl

slightest iutimatioii that any portion of this territory was occupied by natives. There is, however, a proviso that the grant is not to inchxde any lands "actually possessed or inhabited by any other Christian prince or state," but the Indians are wholly ignored.

That the Indians were not wholly forgotten when the charter of Charles I, granting Maryland to Lord Baltimore, was penned, is evi- dent from some two or three statements therein. But none of these, nor anytbiug contained in the charter, has any reference to the rights of these natives, or show any solicitude for their welfare or projier treat- ment. The first of these is a mere recognition of the fact that the territory is partly occupied by them : ''A certain region, hereinafter described, in a country hitherto uncultivated, in the parts of America, and partly occupied by savages having no knowledge of the Divine Being." The next is that mentioning as the payment required " two Indian arrows of those parts to be delivered at the said castle of Windsor, every year on Tuesday in Easter week." Tlie third is a mere mention of "savages" as among the enemies the colonists may have to encounter. The fourth and last alhision to the natives is in the twelfth section, which authorizes Lord Baltimore to collect troops and wage war on the " barbarians " and other enemies who may make incursion into the settlements, and "topursne them eveu beyond the limits of their province," and "if (lod shall grant it, to vanquish and captivate them ; and the captives to put to death, or according to their discretion, to save." The only allusion to the natives in William Penn's charter is the same as the latter in substance and almost the same in words.

Other charters might be cited to the same eflect, but those mentioned will suttice to show that as a rule the English sovereigns wholly ignored the Indians' rights in granting charters for lands in North America; that they gave no expression therein of a solicitude for the civilization or welfare of the natives. Although the problem of dealing with these native occupants was thus shifted on the grantees and colonists, yet there were occasions where the government was forced to meet the question and take some action. Actual contact with the difficulty, of course, made it necessary to develop some policy or adoi)t some rule of action. This led to the recognition of the Indians' right of occupancy and the obligation on the government to extinguish this right by i^ur- chase or other proper means consistent with national honor.

Soon after Charles II ascended the throne he sent (1GG4) commis- sioners to America to examine into the condition of the colonies and to determine all complaints and appeals which might be brought before them. Their purpose was thwarted largely by the opposition of Massa- chusetts, and, although deciding on some claims based on purchases from Indians, no policy in this respect was developed.

As treaties, etc, concerning lands, which may be considered as made directly with the English government and not with the colonies, the following may be mentioned as the most important. 18 ETH, PT 2 3

552 INDIAN LAND CP:SSI0XS IN THE UNITED STATES [eth.a™. 18

A "Deed from the Five Nations to the King, of their Beaver Hunt- ing Ground," made at Albany, New Yoik. July 19, 1701. This, which is somewhat peculiar, is as follows:'

To all Christian & Indian people in this parte of the world and in Enrope over the great salt waters, to whom thi; presents shall come — Wee the Sachims Chief men. Capt"* and representatives of the Five nations or Cantons of Indians called the JIaqnase Oneydes Onnandages and Sinnel;es living in the Governaient of New Yorke in America, to the north west of Albany on this side the Lp^ke Cadarachcjui sendeth greeting — Bee it known unto yon tliat our ancestors to our certain knowl- edge have liad, time out of mind a iierce and bloody warr with seaven nations of Indians called the Aragaritkas- whose Cliief cnniand was called successively Choha- hise — The land isscituatelyeingand being northwest and by west from Albany begin- ning on the south west' side of Cadarach<iui lake and includes all that waste Tract of Land lyeing between the great lake off Ottowawa^ and the lake called by the natives Sahiquage and by the Christians the lake of 8wege'' and runns till it butts upon the Twicbtwichs and is hounded ou the right haud by a place called Quadoge^ couteigning in lengtli about eight hundred miles and in bredth four hundred miles Including the country where the bevers the deers, Elks and such beasts keep and the place called Tieugsachroudio, alias Fort dc Tret or Wawyachteuok and so runs round the lake of .Swege till yon come to )ilace called Oniadarondaijuat which is about twenty miles from the Sinuekes Castles wliich said seaven nations our jirede- cessors did lour score years agoe totally conquer and subdue and drove them out of that country and had peaceable and quiet j)OSsession of the same to hunt beavers (which was the motive caused us to war for the same) for three score years it being the only chief place for huutiug in tliis parte of the world that ever wee heard of and after that wee had been sixty years sole masters and owners of the said land enjoying peaceable hunting without any internegation, a remnant of one of the seaven nations called Tionondade whom wee had expelled and drove away came and settled there twenty years agoe disturbed our beaver hunting against which nation wee have warred ever since and would have subdued them long erenow bad not they been assisted and succoured by the French of Canada, and whereas the (Jovernour of Canada aforesaid hath lately sent a considerable force to a place called TjeugbsagU- ronde the principall passe that commands said laud to build a Forte there without our leave and consent, by which means they will possess themselves of that excellent conutry where there is not only a very good soile but great plenty of all maner of wild beasts in sneh quantities that there is no maner of trouble in killing of them and also will be sole masters of the Boar' hunting whereby wee shall be deprived of our livelyhood and subsistance and brought to j)erpetual bomlagc and slavery, and wee having subjected ourselves and lan<ls ou this side of Cailarachq ui lake wholy to the Crown of England wee the said Sachims chief men Capt'" and representa- tives of the Five nations after mature deliberation out of a deep sence of the many Eoyall favours extended to us by the i)resent great Monarch of England King Will- iam the third, and in consideration also that wee have lived peaceably and (juietly with the people of albany our fellow subjects above eighty years when wee first made a firm league and covenant chain witli these Christians that first came to set- tle Albany on this river whicli covenant cliain hath been yearly renewed and kept bright and clear by all the Governours successively and many neighbouring Govern-

'Xew York Colonial Documents, vol. iv, p. 00&

^Hurons.

^Northwest. See next page, line 12.

■*Lake Iliirnn.

'Lake Erie.

«At the lieadof Lake Michisan. MitchM's iTap of \orth America, 1755. Xow, Chicago, accordini; to Map of the British Dominions in Xorik America, 1763, prefixed to Charlevoix's Votiages, 8^, Dublm,^ 1766.

'A'ic. Query — Beaver?

THOMAS] ENGLISH POLICY TOWARD THE INDIANS SilS

m" of English and nations of Indians have since upon their request been admitted into the same. Wee say upon these and many other good motives us hereunto moveing have frei'ly and voluntary surrendered delivered up and for ever quit claimed, and by these presents doe for us our heires and successors absolutely surrender, deliver up and for ever quit clainie uuto our great Lord and JIaster the King of England called by us Corachlioo and by the Christians William the third and to his heires and successors Kings and Queens of England for ever all the right (itle and interest and all the claime and demand whatsoever which wee the said five nations of Indians called the Jlaquase, Oneydes, Onnondages, Cayouges and Siunekes now have or which wee ever had or that our heirs or successors at any time hereafter may or ought to have of, in or to all that vast Tract of land or Colony called Canagariarchio beginning on the northwest side of C'adarachqui lake and includes all that vast tract of land lyeing between the great lake of Ottawawa and the laki^ called by the natives Cahi- quage and by the Christians the lake of Swege and runns till it butts upon the Twiclitwichs and is bounded on the westward by the Twichtwichs by a place called Quadoge conteiniug in length about eight hundred miles and in breath four hun- dred miles including the Country where Keavers and all sorts of wild game keeps and the place called Tjeughsaghroudie alias Fort de tret or Wawyachtenock and so runns round the lake of Swege till you come to a place called Oniadaruudaquat which is about twenty miles from the Sinnekes castles including likewise the great falls Oakinagaro, all which [was] formerly posest by seaven nations of Indians called the Aragaritka whom by a fair warr wee subdued and drove from thence four score years agoe bringing numy of them captives to our country and soe became to be the true owners of the same by conquest which said land is scituate lyeing and being as is above expressed with the whole soylc the lakes the rivers and all things pertaining to the said tract of land or colony with power to erect Forts and castles there, soe that wee the said Five nations nor our heires nor any other person or per- sons for us by any ways or meanes hereafter have claime challenge and diniaud of in or to the premises or any parte thereof alwayes provided and it is hereby expected that wee are to have free hunting for us and the heires and descendants from us the Five nations for ever and tliat free of all disturbances expecting to be protected therein by the Crown of England hut from all the action right title interest and demand of in or to the premises or every of them shall and will be nterly excluded and debarred for ever by these presents and wee the said Sachims of the Five Nations of Indians called the Maquase, Oneydes, Onnandiiges, Cayouges and Sinnekes and our heires the said tract of laud or Colony, lakes and rivers and premises and every part and parcell thereof with their and every of their appurtenances unto our souveraigne Lord the King William the third A his heires and successors Kings of England to his ami their proper use and uses against us our heires and all and every other person lawfully claiming by from or under us the said Five nations shall and will warrant and forever defend by these presents — In Witness whereof wee the Sachims of the Five nations above mentioned in behalf of ourselves and the Five nations have signed and sealed this present Instrument and delivered the same as an Act and deed to the Hon*'''' ,John Nanfan Esq"^ Lien' Gov' to our Great King in this province whom wee call Corlaer in the presence of all the Magistrates otticers and other inhabitants of Albany praying our Brother Corlaer to send it over to Carachkoo our dread sou- veraigne Lord and that he would be graciously pleased to accept of the same Actum in Albany in the middle of the high street this nineteenth day of July in the thir- teenth year of His Maj'>'» reign Annoque Domini 1701.

This Wits coiilinued twenty-five years later by a substautial renewal of the deed, but limited in extent and made in the form of a trust, the granting clause being as follows: '

We . . . Uo hereby Ratify Confirm Submit and Grant and by these Presents do (for our Selves our heirs and Successors and in behalf of the whole nations of

' New York Colonial Documents, vol. v, p. 800.

554 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

Sinnekes Cayouges & onnondages) Ratify Confirrae Submit aud Grant unto Our Most Sovereign Lord George by the grace of God King of Great Brittain France aud Ireland Defender of the Faith & bis lieirs and Successors for Ever, all the Said Land and Beaver hunting to be Protected & Defended by his Said Majesty his heirs & Successors to and for the use of us our heirs & Successors and the said Three nations. And yre Do allso of our owu Accord free aud A'oluntary will Give Render Submit and Grant and by these presents do for our Selves our heirs & Successors Give Reuder Submit aud Graut unto Our Said Sovereign Lord King George his heirs and Successors for Ever all that Land Lying aud being Sixty miles distance taken Directly from the water into the Country Beginning from a Creek Call'd C'liuahogue on the Lake Osweego, all along the said lake aud all along tlie narrow passage from the said Lake to the Falls of ( )niagara Called Cahaquaraghe and all along the River of < iniagara aud all along the Lake Cadarackquis to the Creek Called .Sodonis belonging to the Senekes aud from Sodoms to the hill Called Tegerhunkserode Belonging to the Cayouges, and from Tegerhunckseroda to the Creek Called Cay- hunghage Belonging to the Onnondages all the Said Land being of the Breadth of Sixty English miles as aforesaid all the way from the aforesaid Lakes or Rivers Directly into the Country aud thereby Including all the Castles of the aforesaid Three nations with all the Rivers Creeks aud Lakes within the Said Limits to be protected & Defended by his said Majesty his heirs aud Successors for Ever To and for Our USE our heirs & Sucessors and the Said Three Nations lu Testimony whereof We have hereunto sett our JIarks and Affixed our Seales in the city of Albany this fourteenth Day of September in The thirteenth year of his Majestys Reign Annoq'' Domini 1726

Although these concessions were made by the Indians solely for the purpose of ])]aciiig themselves under the sovereignty and protection of the English government, attempts were afterward made to construe them as an absolute transfer of the Indian title, and grants were made by the authorities for tracts iu said territory. This claim, however, was abandoned, although it does not apiicar that the individual grants were surrendered, notwithstanding this course was urged by Wir "William Johnson, This, as might have been foreseen, resulted in serious trouble.

It appears by a report of the Lords of Trade, read before the Coun- cil at the Court of Saint James, November 23, 1761, and approved, the King being present, that the government had at last been aroused to the necessity of paying regard to the Indians' rights, as shown by the following quotation therefrom : '

That it is as unnecessary as it would be tedious to enter into a Detail of all the Causes of Complaint which, our Indian Allies had against us at the commencement of the troubles in America, and which not only induced them th6 reluctantly to take up the Hatchet against us aud desolate the Settlement on the Frontiers but encour- aged our enemies to pursue those Measures which have involved us in a dangerous and critical war, it will be sufficient for the present purj^ose to observe that tlie primary cause of that discontent which produced these fatal Effects was the Cruelty and Injustice with which they had been treated with respect to their hunting grounds, in open violation of those solemn compacts by which they had yielded to us the Dominion, but not the property of those Lands. It was happy for us that we were early awakened to a proper sense of the Injustice and bad Policy of such a Conduct towards the Indians, and no sooner were those measures pursued which

^ Colonial documents, number five, vol. vn, p. 473.

THOMAS] ENGLISH POLICY TOWARD THE INDIANS i)On

iudicated a Dispositiou to do them all possible justici- upon tliis head of Complaint than those hostilities -which had produced such horrid scenes of devastation ceased, and the Six Nations and their Dependents became at once from the most inveterate Enemies our fast and faithfull Friends.

That tlieir steady and intrepid Conduct upon the Expedition under General Am- herst for the Reduction of Canada is a striking example of this truth, and they now, trusting to our good Faith, impatiently wait for that event which by putting an End to the War shall not only ascertain the British Empire in America but enable Your Majesty to renew those Compacts by which their property in their Lands shall be ascertained and snch a system of Reformation introduced with respect to our Interests and Commerce with them as shall at the same time that it redresses their Complaints and establishes their Rights give equal Security and Stability to the rights and Interests of all Your Majesty's American Subjects.

That under these Circumstances and in this scituation the granting Lands hitherto unsettled and establishing Colonies upon the Frontiers before the claims of the Indians are ascertained appears to be a measure of the most dangerous tendency, and is more particularly so in the present case, as these settlements now proposed to be made, especially those upon the Mohawk River are in that part of the Country of the Possession of which the Indians are the most jealous having at dift'erent times expressed in the strongest terms their Resolution to oppose all settlements thereon as a manifest violation of their Rights.

This condition of affairs was no doubt due largely to tbe lack of any settled and well-defined policy on the part of the government in its dealings with the Indians in regard to their lauds. This subject, as hitherto stated, seems to have been relegated, at lea.st to a large extent, to the colonists or grantees of the royal charters; and although conipiaints from the Indians, or from others in their behalf, were fre- quently made directly to governmental authorities, it does not appear that the latter were aroused thereby to the necessity of adopting some jjolicy on this subject. It was not until the war with France and the expedition against Canada that the government felt compelled to deal directly with this subject.

We find the Lords of Trade, in 1756, incpiiring through Mr Pownalls of Governor Hardy what should be the proper and general system for the management of Indian affairs.

The reply of this official was to the effect that, with respect to the Six Nations, the governor of the province should have the chief direc- tion of their affairs and that no steps should be taken with them with- out consulting him, as he had always directed the thansactions with them; but he suggested that "some proper person under this direction should have the management and conduct of Indian affairs.'' He recommended for this purpose Su- William Johnson, who had previously been commissioned for the same purpose by General Braddock.

This suggestion was adopted, though Sir William Johnson refused to -accept a new commission, preferring to act under tiiat received from General Braddock, which was broader in its scope, and referred to tribes other than the Six Nations. This was permitted.

On December 2, 1761, the Lords of Trade submitted to the King a draft of instructions to the governors of the colonies, which were

556 INDIAN LAND CESSIONS IN THE UNITED STATES [eth. axn. 18

approved by him. As these indicate ii reform in the system which had prevailed, tliey are given here:

Draft of an Instruction for the Governors of Nova Scotia, New Hampsliire, New York, Virginia, North Carolina, South Carolina, and Georgia forbidding them to Grant Lands or make Settlements which may interfere with the Indians bordering on those Colonies.

Whereas the peace and security of Our Colonies and Plantations upon the Conti- nent of North America does greatly depend upon Ihe Amity and Alliance of the several Nations or Tribes of Indians bordering upon the said Colonies and upon a Just and failhfnll Observance of th<ise Treaties and Compacts which have been here- tofore solemnly entered into with the said Indians by Our Royall Predecessors Kings & Queens of this Reiilm. And whereas notwithstanding the repeated Instructions which have been from time to time given by Our Royal Grandfather to the Govern- ors of Our several Colonies upon this head the said Indians have made and do still continue to make great complaints that Settlements have been made and possession taken of Lands, the property of which they have by Treaties reserved to themselves by persons claiming the said lands under pretence of deeds of Sale and Conveyance illegally fraudulently and surreptitiously obtained of the said Indians ; And Whereas it has likewise been rejuesented unto Us that Dome of Our Governors or other Chief Officers of Our said Colonies regardless of the Dutj' they owe to Us and of tlie Wel- fare and Security of our Colonies have countenanced such unjust claims and pre- tensions by passing (irants of the Lands so pretended to have been purchased of the Indians We tlierefor taking this matter into Our Royal Consideration, as also the fatal Effects which would attend a discontent amongst the Indians in the present situation of aftairs, and being deternuned upon all occasions to supjiort and protect the said Indians in their just Rights and Possessions and to keep inviolable the Treaties and Compacts which h.ave been entered into with them, Do hereby strictly enjoyn it command that neither yourself nor any Lieutenant Governor, President of the Council or Commander in Chief of Our said ™™^!j of do

upon any pretence whatever upon pain of Our highest Displeasure and of lieing forthwith removed from your or his oHice, pass any Grant or Grants to any persons whatever of any lands within or adjacent to the Territories possessed or occupied by the said Indians or the Property Possession of which has at any time been reserved to or claimed by them. And it is Our further Will and Pleasure that you do publish a proclamation in Our Name strictly enjoining and recjuiring .all persons whatever who may either wilfully or inadvertently have seated themselves on any Lands so reserved to or claimed Ijy the said Indians without any lawful! Authority for so doing forthwith to remove therefrom And in case you shall find upon strict enquiry to be made for that purpose that any person or persons do claim to hold or possess any lands within Our said 'JjoioT" "!>"" pretence of purchases made of the said Indians without .a proper licence first had and obtained either from Us or any of <Jur Royal Predecessors or any person acting under Our or their Authority you are forthwith to cause a prosecution to bo carried on against such person or persons who shall have made such fraudulent purch.ases to the end that the land may be recovered by duo Course of Law And whereas the wholsome Laws that have at difl'erent times been jiassed in several of Our said Colonies and the instructions which have been given by Our Royiil Predecessors for restraining per- sons from purchasing lands of the Indi.ms without a Licence for that purpose and for regulating the proceedings ujion such purchases have not been duly observed, It is therefore Our express Will and Pleasure that when any application sli.all be made to you for licence to purchase lands of the Indians you do forbear to gr.ant such licence untill you shall have first tr.ansmitted to Us by Our Commissioners for Trade and Plantations the particulars of suih ai)plications as well as in respect to the situation as the extent of the lands so proposed to be purchased and shall have

THOMAS) ENGLISH POLICY TOWAUD THE INDIANS 557

received Our further directions therein; And it is Our further Will and Pleasure that you do forthwith cause this Our Instructiou to you to be made Publick not only within all parts of your said ''^°l'°'' inhabited by Our Subjects, but also amongst the several Tribes of Indians livinj; within the same to the end that Oiir Royal Will and Pleasure in the Premisi-s may be known and that the Indians may be apprized of Our determiu'd Resolution t'> support them in their .just Rights, and inviolably to observe Our Kngagements with them.'

It was not surprising that the condition coraiilaiued of sbouUl Lave resulted from a ^vavering and undefined policy and double-beaded sys- tem. First, a total ignoring- of the Indians' rights, turning over the problem to the colonies; then appointing an agent of Indian affairs on behalf of the government, yet subject in most respects to the control of the colonial governors, who might, and did in more than one case, grant away tracts of the very lauds reserved by this agent to the natives. 8uch a system, or rather lack of system, was likely to result iu confusion and trouble.

Two agents were appointed, one for the northern district — that is to say, for certain of the northern colonies and the territory not embraced in the colonial limits— and another for the southern district.

Lord Egremout, writing on May 5, 1703, to the Lords of Trade in regard to questious relating to North America, remarks, among other things, as follows:

The second question which relates to the security of North America, seems to include two objects to be provided for; The tirst is the security of the whole against any European Power; The next is the preservation of the internal peace & tran- quility of the Country against any Indian disturbances. Of these two objects the latter appears to call more immediately for such Regulations an<l Precautions as your Lordships shall think proper to suggest Aca.

Th6 iu order to succeed effectually in this poiut it may become necessary to erect some Forts in the Indian Country with their consent, yet his Majesty's Justice and Moderation iuclini'S him to adopt the more eligible Method of conciliating the minds of the Indians by the mildness of His Government, by protecting their persons and property, &. securing to them all the possessions rights and Privileges they have hitherto enjoyed & are entitled to most cautiously guarded against any Invasion or Occupation of their hunting Lands, the possession of which is to be acquired by fair purchase only, and it has been thought so highly expedient to give the earliest and most convincing proofs of his Majesty's gracious and friendly Intentions on this head, that I have already received and transmitted the King's commands to this pur- pose to the Governors of Virginia, the two Carolinas & Georgia, & to the Agent for Indian Aft'airs in the Southern Department, as your Lordships will see fully iu the inclosed copy of my circular letter to them on this subject. -

In August of the same year the Lords of Trade informed Sir William Johnson that they had "proposed to His Majesty that a proclamation should be issued declaratory of His Majesty's final determination to permit no grants of lands nor any settlement to be made within certain fixed bounds under pretence of purchase, or any pretext whatever, leav- ing all the territory within these bounds free for the hunting grounds of the Indian Nations, and for the free trade of all his subjects."

' New York ColoDial Documents, voL vu, pp. 478-479. 'Ibid., pp. 620-521.

558 INDIAN LAND CESSIONS IN THE UNITED STATES [eth. ann. 18

Tliat tlie management of Indian affairs was at last taken out of the bauds of at least the governor of New York appears from a letter of Lieutenant Governor Golden to the Earl of Halifax, December 8, 1763.

As the territories of Quebec, East Florida, and West Florida had, l)y virtue of the treaty with France, February 10, 1763, come under the control of Great Britain, a proclamation for their government was issued October 7, 1763. The following clauses relating to the policy to be i)ursued with the Indians in these colonies, and some other sections mentioned, are inserted here:'

And whereas, it is just and reasouable, and essential to our interest and tile security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who ]iv(! under our protection, should not be molested or dis- turbed in the possession of such jjarts 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 commis- sions; as, also, that no Governor or commander in chief of our other colonies or plantatious in America, do presume for the present, and until our further pleasure be known, to grant warrants 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 pur- chased 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 laud 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 lands 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 lov- ing subjects from making any purchases or settlements whatever, or taking posses- sion of any of the lands aliove reserved, without our special leave and license for that purpose first obtained.

And we do further strictly enjoin and require all persons whatever, who have either wilfully or inadvertently seated themselves upon any lauds witliin the coun- tries 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 i'rom such settlements.

And whereas great frauds and abusers have been committed in tlie purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissat- isfaction 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 an<l 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 tho.se jiarts 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 assemldy of the said Indians, to be held for that pur- pose, 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,

' Laws, etc, relating to IMihiic Lands {1828), pp.

THOMAB] ENGLISH POLICY TOWARD THE INDIANS 559

conformable to such flirectioiis and iustructious as we or they shall think proper to give for that purpose.

Although primarily relating to the colonies of Quebec, East Florida, and West Florida, it is evident from the distinct statements therein that it was intended, as regards the points referred to in the quotation, to be of general application. The policy set forth in this proclamation is just and honorable, and appears to have been followed, as a general rule, by Great Britain in its subsequent dealings with the Indians, which, after 1770, were limited to its northern possessions.

In April, 1764, Sir William Johnson, as " Sole agent and superin- tendent of Indian affairs for the Northern parts of North America," concluded articles of peace with the Seneca Indians in which they ceded to the King the following lands:

From the Fort of Niagara, extending easterly along Lake Ontario, about four miles, comprehending the Petit Marais, or landing place, and running from thence southerly, about fourteen miles to the Creek above the Fort Schlosser or Little Niagara, and down the same to the River, or Strait and across the same, at the great Cataract; thence Northerly to the Banks of Lake Ontario, at a Creek or small Lake about two miles west of the Fort, thence easterly along the Banks of the Lake Ontario, and across the River or Strait to Niagara, comprehending the whole carrying place, with the Lands ou both sides the Strait, and containing a Tract of ab' fourteen miles in length and four in breadth.'

As the articles make uo mention of payment it is presumed the grant was made by the Seneca to purchase peace with the English.

Most of the foregoing facts relate, it is true, to the lands and Indians of New York, and might very properly be considered in referring to the policy of that colony; however, as they give some insight into the English policy in the latter days of British rule over the colonies, they are presented here. It must be admitted, however, as before stated, that they indicate an ill defined sj'stem resulting apparently from a neglect to take the subject into consideration at the outset. Had some provision for the proper treatment of the Indians in regard to their possessory rights been made in the original charters, and the lords pro- prietary and governors of the colonies been required to observe these provisions, much of the trouble with the natives experienced by the gov- ernment and the colonies would, in all probability, have been avoided.

It is unnecessary to allude to the transactions of the English author- ities in the southern colonies, as these, so far as they relate to purchases and grants of lands by the Indians, will be referred to under the respec- tive colonies. However, there are two or three treaties in regard to lands in the south, outside of the colonies, which should be mentioned, as tlie boundaries fixed therein are referred to in one or two of the treaties in the accompanying schedule.

The first of these is "a treaty between Great Britain and the Chicka- saw and Choctaw Indians," made at Mobile, March 2G, 17(55. Article 5 is as follows:

And to prevent all disputes on account of encroachments, or supposed encroach- ments, committed by the English inhabitants of this or any other of His Majesty's

* New York Colonial Documents, vol. vii, p. 621.

560 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

Provinces, on the lands or hunting i,'rouncls reserved and claimed by tlie Chickasaw and Choctaw Indians, and that no mistakes, doubts, or disputes, may, for the future, arise thereupon, in'consideratiou of the great murks of friendship, benevolence, and clemency, extended to us, the said Chickasaw and Choctaw Indians, by His Majesty King (4eorge the Third, we, the chiefs and head warriors, distinguished by great and small medals, and gorgets, and bearing His Majesty's commissions as Chiefs and leaders of our respective uatious, by virtue and in pursuance of the full right and power which we now have and arc possessed of, have agreed, and we do hereby agree, that, for the future, the boundary be settled by a line extended from Gross Poiut, in the island of Mount Louis, l>y the course of the western coast of Mobile Bay, to the mouth of the Eastern branch of Tombecbce river, and north by the course of the said river, to the confluence of Alebamont and Tombecbee rivers, and afterwards along the western bank of Alebamont river to the mouth of Chickasaw rivei", and from tlie confluence of Chickasaw and Alebamont rivers, a straight line to the con- fluence of Bance and Tombecbee rivers; from thence, by a line along the western bank of Bance river, till its confluence with the Tallotkpe river; from thence, by a straight line, to Tombecbee river, opposite to Alehalickpe; and from Alchalickpe, by a straight line, to the most northerly part of Buckatanne river, and down the course of Buckatanne river to its coufluence to the river Pascagoula, and down by the course of the river Pascagoula, within twelve leagues of the sea coast; and thence, by a due west line, as far as the Choctaw nation have a right to grant.

And the said chiefs, for themselves and tlieir nations, give and confirm the prop- erty of all the lands contained between the aljove deserilied lines and the sea to His Majesty the King of Great Britain, and his successors, reserving to themselves full right and property in all the lands to the northward of said lines now possessed by them; and none of His Majesty's white subjects shall be permitted to settle on Tombechee river to the northward of the rivulet called Ceutebonck.'

The second is "a treaty between (xreat Britain and the Upper and Lower Creek Indians," signed at Pensacola, Floi'ida, May 28, 1765. Article 5 is as follows:

And to prevent all disputes on account of encroachments, or supposed encroach- ments, committed by the English inhabitants of this or any other of his Majesty's provinces, on the lands or hunting grounds reserved and claimed by the Upper and Lower Creek nations of Indians, and that no mistakes, doubts, or disputes, may. for the future, arise thereupon, in consideration of the great marks of friendship, benev- olence, and clemency, extended to us, the said Imlians of the Upper and Lower Creek nations, by His Majesty King George the Third, we, the said chiefs and head warriors, leaders of our respective nations, by virtue and in pursuance of the fall rights and power we have and are possessed of, have agreed, and we do hereby agree, that, for the future, the boundary be at the dividing paths going to the nation and Mobile, wheio is a creek; that it shall run along the side of that creek until its C(iulluen<'e with the river wliich falls into the bay; then to run around the bay and take in all the i)lantations which formerly belonged to the Yaumasee Indians; that no notice is to be taken of such cattle or horses as shall pass the line; that, from the said dividing paths towards the west, the boundary is to run along the jiath leading to Mobile, to the creek, called Cassaba; and from thence, still in a straight line, to another creek or great branch, within forty miles of the ferry, and so to go up to the head of that creek; and from thence turn round towards the river so as to include all the old French settlements at Tassa; the eastern line to be determined by the flowing of the sea in the bays, as was settled at Augusta. And we do hereby grant and conflrm unto His Majesty, his heirs, and successors, all the lands contained between the said lines and the sea coast.-

' Laws, U. S., etc, respecting Public Lands, vol. II, 1836, app., p. 275.* "Ibid., p. 276.*

THOMAS] ENGLISH POLICY TOWARD THE INDIANS 561

The third is a treaty between the saine parties as the last, made at Picolata, Florida, November IS, 1705. The fifth article is as follows:

Tc prevent all disputes nn accouut of eucroarhuients, or supposed eucroaelmients, made by tlio Kiigiisli inliabitauts of his Majesty's said province, on the lands or hunting grounds reserved and claimed liy the I'pper and Lower imtions of Creek Indians, and that no doubts, mistakes, or disputes, may, for the future, arise; in consideration of the great marks of friendship, benevolence, and clemency, gener- osity, and ]>rotection, extended to us, the said Indians of the I'pper and Lower Creek nations, liy His Majesty King George the Third, we, the chiefs, head -warriors, and leaders, of our respe<tive nations, by virtue and in pursuance of the full rights and power which we now have, and are possessed of, have agreed, and we do hereby agree, that, for the future, the boundary line of His Majesty's said province of East Florida shall be, all the sea coast as far as the tide llows, in the manner settled with the English by the Great Tomachiches, with all the country to the eastward of St. John's river, forming nearly an island from its source to its entrance into the sea, and to the westward of St. John's river by a line drawn from the entrance of the creek Ocklawagh into said river above the great lake, and near to Spalding's upper trading storehouse, to the forks of Black creek at Colviihi's plantation; and from thence to that part of St. Mary's river which shall be intersected by the continu- ation of the line to the entrance of Turkey creek into the river Altamaha. That no notice is to be taken of such horses or cattle as shall pass the line. And we do hereby accordingly grant and conlirm unto His Majesty, his heirs and successors, all the said lands within the said lines.'

But little ueed be said in regard to the English policy in the Cana- dian pio\inces from tlieir acquisition in 1762. The system outlined in the i)roclamatiou of October 7, 1703, appears to have been followed from that time up to the present day, and it may truly be said that, as a general rule, it has been one of justice and humanity creditable to the Canadian authorities. Mr Jo.seph Howe, in retiring from his position as superintendent of Indian affairs in 1872, makes the follow- ing-statement: "Up to the present time the results are encouraging, and although I regret that the state of my health will soon compel me to relimiuish the oversight of the work, I trust it will not be neglected by those who may come after me, and who ought never to forget that the crowning glory of Canadian policy in all times past, and under all administrations, has been the treatment of the Indians." Though this statement is perhaps too broad, yet the course pursued under English control, with some exceptions relative to the seaboard provinces, has been an honorable one.

One precauticni which the commissioners adopted and have generally followed was to require the assembled Indians to name the chiefs, or per- sons of their tribes, who were authorized by them to make the treaty and sign the grant. This fact and the names of the persons so selected were inserted in the deed or grant.

' Laws, U, S., etc, respecting rublic L.inda, vol. n , 1836, apj)., p. 276*.

562 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.asn.18

COLOXIAL POLICY TOWARD THE IXDIANS

THE POLICY IN GENERAL

In treating of the policy and metliods adopted by the different colo- nies in their dealings with the Indians in regard to their lands, one object constantly kept in view will be to limit the investigation strictly to this subject. No attempt, therefore, Mill be made to enter into the general Indian history of colonial days, nor to discuss the rights or wrongs of settlers or Indians. As heretofore stated, the scope of the jn-esent work does not embrace the inoral element in the numerous transactions referred to, nor the policy adopted; it is limited as strictly as possible to the facts seen from the legal point of view and to the usual custom of the nation or colony.

As the policy of the different colonies in the respect now treated of was seldom, if ever, expressed at the outset, it must, to a large extent, be ascertained from their i>ractical dealings with the natives in regard to their lands and their titles thereto. Reference will be made, there- fore, to some of the more important purchases, cessions, grants, etc, by which possession of the lands of the different colonies was obtained and to the laws enacted; but no attempt to give a systematic list of the various cessions to or by the colonies, or of all the laws relating to the subject, will be made. The only object in view in presenting such as will be given is to furnish data by which to judge of the method of treating with the Indians and the poli<!y adopted. Even where histo- rians have clearly defined the policy of a colony in this respect, the data are still furnished that the reader may be enabled to form his own opinion, for historians are often more or less influenced by the point of view from which they write.

It may be remarked here in regard to the lands purchased of the natives in the early days, that in many cases the bounds mentioned in the deeds are so indefinite that it is impossible to define them on a map. In some instances the limits actually adopted have been preserved by tradition, but in many others they were so indefinite that one purchase overlapped or duplicated or even triplicated, in part, another. As examples of this class, the purchases by the settlers of Connecticut may be referred to. This uncertainty hangs about almost every one of the earlier colonial purchases. Even those by William Penn, so lauded in history as exanii)les of sturdy Quaker honesty, must be included in this category, as their bounds and extent are poorly defined and in some instances depend entirely on tradition. The extent, in some cases, was decided by a day's travel on foot or horseback, while some of the grants overlapped one another.

A loose custom prevailed in some of the colonies of allowing individ- uals to purchase from the Indians without sufficient strictness as to the authoritative acknowledgment or recording of such deeds of purchase. Many of these are known only traditionally, others only through law-

THOMAS] Virginia's policy toward the Indians 563

suits which, arose out of these claims. It is uext to Impossible at this day to ascertain all these individual purchases; moreover, it is not a])parent that it would serve any good purpose in this connection to give them were it possible to do so.

It has been stated repeatedly that the policy of the colonies was the same as that afterward adopted by the United States. While this may be true in a broad sense, there were difterences in method which had important bearings on the history of the ditterent provinces. In fact, the theory in regard to the Indiau tenure was not precisely the same throughout, as will become evident from a perusal of what is presented. It will also be seen that the idea on which the authorities based their proceedings was not always the same, those of one colony looking chiefly to meeting the claims of the Indians, while the main object in other cases was to obtain as much land as possible, thus differing, though dealing fairly.

VIRGINIA

Although the letters patent of James I to Sir Thomas Gage and oth- ers for " two several colonies,'' dated April 10, IGOG, aiul- his second charter, May 23, 1609, to ''the Treasurer and Company of Adventurers and Planters of the City of London for the "first Colony of Virginia," granted full and complete right in the land, "in free and common socage," yet neither contains any allusion to the rights or title of the natives. The third charter, granted the last-named company March 12, 1611-12, also fails to make any allusion to the title of the Indians or to the mode of dealing with them.

Tiie "instructions'' given by the council of the London Virginia Company to the first adventurers (1606) contains the following very slight indication of the policy to be adopted in dealing with the Indi- ans: "In all your passages you must have great care not to offend the naturals, if you can eschew it; and employ some few of your comjjauy to trade with them for corn and all other lasting victuals if you [theyf) have any: and this you must do before that they perceive you mean to plant among them." '

Burk,^ speaking of the London Company and the nature of its gov- ernment, summarizes its dealings with the Indians as follows:

At tlie comiug of the English, the ludiaus naturally eujoyed the best and most convenient stations for fishing, and the most fertile lands: But iu jiroportion as new settlers came iu, they rapidly lost those advautages. In some cases the colouists claimed by the right of conquest, and the imaginary title conferred by the king's charter. In general however, they acted on better principles, aut^ purchased from the heads of tribes, the right of soil, iu a fair and (as far as was practicable) in a legal manner. In the treaty entered into between sir G. Yeardley and Opechancanough, we find a sweeping clause, granting to the English permission to reside and Inhabit at such places on the banks of certain rivers, which were not already occupied by

'E. D. Neill, Hiatory of the London Virginia Company, ]). 8 ; Smith's Works, Arbor's edition. The English Scholar's Library, Xo. 16, ji. xxxv. ^History of Virginia (1804), vol., I, p. 312, appendix.

564 INDIAN LAND CESSIONS IN THE UNITED STATES [eth. ann. 18

the natives. 'Tis true, the ciiTumstaiices of the parties admitted uot a fair anil leyal purchase; and after the massacre, the Indians were stripped of their inheritance without the shadow of justice.

The special items, however, upon which this verdict appears to have been fonnded are brief and unsatisfactory. It is only after the dissolu- tion of the company in 1624 and the records of the general assembly are reached, that the policy of Virginia in regard to the Indian title is clearly set forth.

According to Stith,' Powhatan's "hereditary countries were only Powhatan, Arrohatock, about twelve miles down, which hath since been corrupted to Haddihaddocks, Appamatock, Youghtanund, Pamunkey, and ]Mattapony, to which may be added, ^Yerowocomoco and Kiskiack, or as it hath since been called Cheesecake, between Williamsburg and York. All the rest were his Conquests; and they were bounded on the South by James river, with all its Branches, from the Mouth to the Falls, and so across the Country, nearly as high as the Falls of all the great Elvers over Patowmack even to Patuxen in Maryland. And some Nations also on the Eastern Shore owned Subjection to him."

In 1()00 Smith purchased of Powhatan the place called Powhatan, which had formerly been this chief's residence. The conditions of this agreement, as given by Stith (page 104), were as follows: "That the English should defend him against the Manakiiis; that he [Powhatan] should resign to them the fort and the houses, with all that country, for a proportion of copper," etc. The extent of territory included under "all that country" is iinknown.

It also appears from Stith (page 140) that in IGIG the Indians, being much straitened for food, aiiplied, through their chief, to Sir Thomas Dale, then governor of the English colony, for corn.

Sir Thomas Dale, among the many Praises, justly due to his Administration, had been jiarticularly careful of tlie Supplies of Life; and had, accordingly, always caused so much Corn to bo planted, that the Colony lived in great Plenty and Abun- dance. Nay, whereas they had formerly been constrained, to buy Corn of the Indians Yearly, which exposed them to much Scorn and Difficulty, the Case was so much altered under his Management, that the Indians sometiuu'S applied to the English, and would sell the very Skins from their Shoulders tor Corn. And to some of their petty Kings, Sir Thouias lent four or five liuudred Bushels; for Repayment whereof the next Year, he took a Mortgage of their whole couutrics.

Whether the Indians' claim that this was repaid was conceded, or was true, is not known. Nothing further than an application for corn by Mr Yeardly and a refusal by the Indians to furnish it is recorded.

In 1G18 a party of Chickahoniiny killed a number of persons, and complaint was made to Opechancanough, who was their chief. In reply he sent a basket of earth to the governor as an evidence that the town of the aggressors was given to the English.

It appears incidentally from Burk's History tiiat a treaty was con- cluded with the Indians in 1G3G, fixing their boundary line, but no par-

' History of Virginia, Sabin's reprint, pp. 53-54.

THOMAS] Virginia's policy toward the Indians 565

ticulars arc given nor does lie say anything' more in regard to it. In 1639-40 the Indians became restless and dissatisfied because of the encroaehnients made upon their lands by tlie vast and indiscriminate grants made by Hervey. These encroachments vrere on the lands secured to the Indians by the treaty of 1()3(>, and led to a war with Opechancanough.' However, it seems that at some time between KUO and 1(U2 peace was concluded through the general assembly. In this case, according to Burk, it was made separately with the heads of the tribes and in a spirit of humanity. It was attained ''by mutual capitu- lations and articles agreed and concluded on in writing." But these do not appear in any of the published records, therefore it is impossible to state what reference was made to lands or boundaries.

By an act of the " Grand Assembly," October 10, 1640, it was ordered as follows :-

Act. 1. Ai't.2. ThatitsU.Tll be free for the said Nccotowance ["King'' of the Indians] and his people, to iuljabit and hunt on tlie north side of Yorke River, without any interruption from the Knglish. Provided that if hereafter, It shall he thought litt by the (iovernor and Countil to peruiitt any English to inhabitt from I'oropotanke dowuewards. that first Necotowauce be acipiainted therewith.

Art. "3. That Neootowance and his people leave free that tract of laud between Yorke river and James river, from the falls of both the rivers to Keqnotan, to the English to inhabitt on, and that neither ho the said Xecotowance nor any Indiana do repaire to or make any abode vpon the said tract of laud, vj)on pain of death.

An act was passed .luly .5, 1653, securing such lands on York river as he should make clioice of to Totopotomoy, the successor of Ojie- chancivnough, as follows:

The order of the last Assembly in the bnsines relateiug to land in York River desired by Tottopottomoy, as information by some jierticnlar members of this Assembly is now represented, is ordered to be and remaine in force as formerly, Pro- vided he lives on the same ; but if he leaves it then to devolve to Coll. William Clay- borne, according to former orders which gave him libertie to make his choice, whether he would have Ramomak, or the land where now he is seated, and that he appear in person before the Governor and Council to make his choice the next (juartcr courts which of the two seates he will hold, and Capt. .lohn West, and Mr. William Hocka- day are enabled to give a safe conduct to the said Tottopottomoy and his Indians for their coming to towne, and his I'eturne home. And the commissioners of Y'ork are required that such persons as are seated vpon the land of Pamunkey or Chicka- hominy Indians be removed according to a late act of Assembly made to that pur- pose, And Coll. .Tohn Eludd to go to Tottopottomoy to examine the proceedings of business and to ileliver it vpon his oath.'

At the same time the commissioners of Gloster (the statute says Gloster but Burk says York) and Lancaster counties were directed "to proi)ortion tlie Indians iuhabiting the said counties their several tracts of land . . . and to set and assign theiu such places and bounds to bunt in as may be convenient both for the inhabitants and Indians."

By act 4 of the same assembly the commissioners of Northamj)ton county were empowered "to take acknowledgment of the Indians in

' Burk, History of Virginia, vol. lit, p. 53.

' Hening's St,atutea at Larg.>, vol. I (182:!), pp. 323-324.

'Ibid., p. 380.

566 INDIAK LAND CESSIONS IN THE UNITED STATES [eth.axn. 18

their county for sale of their hinds."' But this was to be done only ou condition that a majority of the Indians desired it, and that the terms were just. This policy of granting to county commissioners the right to purchase Indian lands was soon found to lead to fraud and injustice, hence the passage of the following laws relating to the sales by Indians.^

The first declaration of general policy in resjiect to Indian lands is found in the act of March 10, 1655, which is as follows:

Act. 1. What lands the Indians shall be iiossessed of by order of this or otlier ensueing Assemblyes, such laud shall not bo alienable by them the Indians to any man de futuro, for this will putt vs to a coutinuall necessity of allottinj;- thim new lands and possessions and they will be allwaies infeare of what they hold not being able to distinquish between our desires to buy or iuforcement to have, in case their grants and sales be desired ; Therefore be it enacted, that for the future no such alienations or bargaines and sales be valid without the assent of Assembly. This act not to prejudice any Christian who hath land allready granted by pattent.'^

The following acts of the same general tenor are extracted from Hening's Statutes, and need no comment:

[March loth, 1657-8. Act. 51. liiiacteiW] That there be no grants of land to any Englishman whatsoever (de futuro) vntil the Indians be first served with the proportion of ffiftie acres of land for each bowman ; and the proportion for each per- ticular to wne to lie together, and to be surveyed as well woodland as cleered ground, and to be layd out before pattented, with libertie of all waste and vufenced land for hunting for the Indians. Further vnucted, that where the land of any Indian or Indians bee found to be included in any pattent allrcadie granted for land at Rappa- haunoclc or the jiarts adjacent, such pattentee shall either purchase the said land of the Indians or relinquish the same, and be therefore allowed satisfaction by the English inhabitants of the said jilaces.''

[Act 72, same assembly :] All the Indiau.s of this colloiiie shall and may hold and Iveep those seates of land which they now have, and that no person or persons what- soever be sufl'ered to entrench or jdaut vpon such places as the said Indians claime or desire vntil full leave from the Governour and Councill or com'rs. for the place: Yet this act not to be extended to prejudice those English which are now seated with the Indians' former consent vnles vpon further examination before the Graud AssembUe cause shall be found for so doeiug . . . Further enacted. That the Indians as either now or hereafter shall want seates to live on, or shall desire to remove to any places void or vntaken vp, they shall be assisted therein, and order granted them, for confirmation thereof, And no Indians to sell their lands but at quarter courtes, And that those English which are lately gone to seate ueare the Pamunkics and the Chichominyes on the north side of Pamunkie river shall be recalled and such English to choose other seates else whore, and that the Indians as by a former act was granted them, shall have free liberty of hunting in the woods without the English fenced plantations, these places excepted between Yorke river and James river and between the Black water and the JIanakin to wne and James river, and noe pattent shall be adjudged valid which hath lately passed or shall pass contrary to the sense of this act. Nor none to be of force which shall intrench vppon the Indians' lands to their discontent without exjiresse order for the same.^

The act of March 13, 1658, same assembly, ratifies the grant of the "Wiccacomoco Indians" of certain lands belonging to them in Xorth- umberland county to the ''honourable Samuel Mathewes," governor.

' Bark, History of Virginia, vol, n, p. 102. " Ibid., p. 456-457.

2 Hening's Statutes at Large, vol. I, p. 396. J Ibid., p. 467.

THOMAS) Virginia's policy toward the Indians 567

The act of October 11, IGOO, authorizes the governor to have sur- veyed aud laid off for the "Accomacke" ludiaus, on the east side of the bay, -'snch a proportion of land as shall be suflicient for their maintenance, with hunting and ti.shiug excluded/' This laud was to be secured to the Indians, but they were to have no power to alienate it to the English.

Au act passed March 23, ICGl, brings to view the difficulty sometimes encountered by private purchases which were made before the passage of the act of March 10, 1655, or in disregard of it. It is as follows:

Upon the petition of Harquip the Maugai of the Chickahomini Indians to have all the lauds Irom Jlr. Malorys bounds to the head of Mattai)oui river & into the woods to the Pamannkes /( is accordiiigly ordered that the said land be confirmed to the said Indians by pattent, and that no Englishman shall upon any jjreteuce disturbo them in their said lioiinds nor purchase it of them unles the major jjart of the great men shall freely and voluntarily declare their consent in the quarter court or assembly.

Whereas a certaine grant hath been made ti) the Chickahomini Indians of certaine lands in \vhiih tract Major Gennerall JIauwariug Hamond claimeth a devideut of 2,000 acres granted him by pattent, It is ordered, that the same' Majiir Gennerall Hamond be desired to purchase the same of the Indians or to procure their consent for the preservation of the conntreys honour and reputation.'

[N^umerous disputes having arisen between the English and the Indians in regard to land i>urchases, and frequent complaints having been made by the latter of encroachments upon their territory, the following act was passed in IGtiO :

Act 138. Whereas the mutuall discontents, complaints, jealousies and ft'eares of English and Indians proceed chiefly from the violent intrusions of di\ erse English made into their lands, The governor, councell and burgesses . . . enact, ordaine aud contirme that for the future noe Indian king or other shall upon any pretence alien and sell, nor noe English for any cause or consideration whatsoever purchase or buy any tract or parcell of land now justly claymed or actually possest by any Indian or Indians whatsoever; all snch bargaines and sales hereafter made or pretended to be made being hereby declared to be invalid, voyd and null, any acknowledgement, surrender, law or custome formerly used to the contrary not- withstanding.-

This is probably the act referred to by Charles CampbelP where he makes the following statement:

The numerous acts relating to the Indians were reduced into one ; prohibiting the English from purchasing Indian lands; securing their persons aud property; pre- venting encroachments on their territory ; ordering the English seated near to assist them in fencing their corn-fields ; licensing them to oyster, fish, hunt and gather the natural fruits of the country ; prohibiting trade with them without license, or im- prisonrfieut of an Indian king without special warrant; bounds to be annually defined; badges of silver and copper plate to be furnished to Indian kings; no Indian to enter the English confines without a badge, under penalty of imprison- ment, till ransomed by one hundred arms length of roanoke (Indian shell money); Indian kings, tributary to the English, to give alarm of approach of hostile Indians ; Indians not to be sold as slaves, &c.

' Hening'a Statutes at Large, vol. ii, p. 34.

Uliid., p. 138.

3 History of the Colony .ind Ancient Dominion of Virginia (1847). p. 77

IS ETH, FT 2 4

568 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.axn. 18

By the act of October 10, 1G65, the bounds of the Indians on the south side of James river were fixed as follows : " From the heads of the southern branches of the blackwater to the Appomatuck Indians, and thence to the Manokin Town. "2 This boundary was more accurately fixed in 1691, as will later be shown.

After the death of Opechancanough, no chief of sufficient prestige and authority to hold the Indians in confederation having arisen, a long peace followed. Several of the tribes retired westward and those which remained, i-educed in numbers and wanting concert, lingered on the frontiers, and exchanged with the settlers their superfluous prod- ucts at stated marts. This ijeace, however, was broken in 1675. The Indians at the head of Chesapeake bay and tribes farther south made sudden and furious inroads upon the frontier settlements " marked by devastation and blood."' On the 6th of June, 1076, during the war which ensued, the following act was passed:

Act 3. Whereas this couutr, is now engaged in a warr against the Indians, and will thereby inevitably be at great cost and charges in prosecuting the same, and whereas at or about the last conclusion of ])eace with the Indians, certain great quantities of land was assigned and sett apart, for them, wLiich lands were they sold for the use of the country would in some measure help to defray the puldique charge aforesaid, . . . Therefore enacted and ordained by goFernour, council and burgesses of this grand assembly, and by the authori.ty of the same, that all lands whatsoever sett ajjart for Indians in the last conclusion of peace with them and other Indian lands as now are, or hereafter shall be by them deserted, bee not granted away by patteut to any perticuler jierson or persons, but that the same be reserved, and by due forme of law vested on the country, and dispose to the use of the pnblique towards defraying the charge of this warr. Provided alwaies that this act nor any thing therein contained shall prejudice any legall grants heretofore made to any person or persons whatsoever of any part or parcell of the said lands, and all such Indian lands as have bin pattented since the peace aforesaid, and before such deser- tion shall be held and deemed to lie illegally pattented. -

The act of April 16, 1691, above referred to as determining the boundary of the Indian territory south of James river, is as follows :

Forasmuch as by a clause of the 8th act of assembly made at James Citty October the tenth, 1065, it is enacted that the bounds of the Indians on the south side James river, be from the heads of the Southern branches of the Black water to the Appomatuck Indians, and thence to the Manokin Town, for the better explaining and ascirtain- ing the bounds betwixt the English and Indians on the south side of James River, Be it enacted . . . That a line from the head of the cheife or principal brancli of the black water, to the upper part of the old Appamattocks Indian Town feild, and thence to the upper end of Manokin Town be Judged, deemed, held and taken, to be the said bounds, and that the right honourable the lieutenant governour, with the advice of the councell liee requested to appoint some surveyor or surveyors to lay out, asceitain and plainly marke the said lines, and that all pattents or other grants of any Lands laying without the said bounds be, and hereby are declared void and null to all intents and purposes as if the same had never been granted.^

In 1722 Governor Spotswood concluded a treaty with the Six Nations by which they agreed never to appear to the east of the Blue ridge nor

•Burk, History of Virginia, vol. n. pp. 155-157. ' Hening's Statutes at Large, vol. II, p. 351.

^Hening's Statutes at Large, vol. in, p. 84.

THOMAS] Maryland's^ policy toward the indla.ns 569

soiitli of the Potomac. But tliis bouiulary line was not sufficient to arrest the westward progress of Euglish settlement, for it was not long before liardy pioneers liad located themselves west of the dividing ridge. This, as a natural conse(iueuce, angered the Indians, and col- lisions ensued.

However, on July 31, 1743, a treaty of peace was concluded at Lan- caster, Pennsylvania, between Virginia, Maryland, and Pennsylvania on the one hand and the Six Ifations on the other, in which, among other agreements, was one by which these Indians, for the considera- tion of four hundred pounds, reluctantly relincpiished the country lying westward from the frontier of Virginia to Ohio river.

MARYLAND

The charter granted June 20, 1632, by Charles II to Cecilius Cal- vert, Baron of Baltimore, contains no reference to the Indians. By section 18, however, full and absolute power is given to the Baron of Baltimore, his heirs and assigns, to —

. . . :issigu, alien, graut, demise or enfeotV sucli and proportionate parts and par- cels of the i)remises, to any person or persons willing to purchase the same as they shall think convenient, to have and to hold to the same person or persons willing to take or purchase the same, and his and their heirs and assigns in fee simple, or fee- tail, or for term of life, lives or years; to hold of the afores.aid now Barou of Balti- more, his heirs and assigns, by so many, such and so great services, customs and rents of this kind, as to the same now Baron of Baltimore, his heirs and assigns, shall seem lit and agreeable, and not immediately of us our heirs or successors.

The King's right of granting lands in the province being thereby fully and completely transferred to Lord Baltimore, his heirs and assigns, without any reservation or exception in regard to the natives, gave him full authority to deal with them in his own way in reference to their title to and possession of the lands.

The policy to be i)ursued was made evident first by action, several years having elapsed after the first settlement before it was announced in an official manner or enacted into a law.

The first settlers under Leonard Calvert, brother of tlie Baron, as leader and governor, landed on the 27th of March, 1634, on the north bank of the Potomac and planted themselves in the Indian town of Youmacn (probably Wicomoco), which they named St Mary's. This was done, however, with the consent of and by agreement with the Indians. In order to pave the way to a i^eaceable admission into the country, the governor presented to the chief and principal men of the Yoamacoes "some English cloth, axes, hoes, and knives,'' which thej^ accepted with pleasure. They also agreed to leave the whole town to the English as soon as their corn was gathered, which agreement was faithfully carried out. It is supposed that this agreement was facilitated Ky an antici- Ijated attack by the Susquehanocks, whom they feared.

That this was considered a purchase is asserted by Chalmers,' who

> Anuals, \\. 207.

570 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ajjn. 18

says that Calvert "purchased the rights of the aborigines for a con- sideratiou which seems to have given them satisfaction . , . and lived with them on terms of perfect amity till it was interrupted by Clay- borne.'' It does not appear, however, that the extent of territory was indicated or that any metes and bounds were designated.

It will perhaps not be considered out of place to insert here the some- what strong defense of Maryland's justice and humanity in dealing with the Indians, presented by her historian, Bozman.' It is given partly because of its bearing on a question which will be alluded to in speaking of the Pennsylvania policy:

As philanthropists have been excessively clamorous in the praises of William Penn for his ostentatious purehaso of the lands of the aborigines, particularly at the time of his supposed treaty with the Indians under the great elm at Shackamaxon, (so brilliantly illustrated by the pencil of his Britannic majesty's historical painter,) it is here thought, that the conduct of Leonard Calvert, on a similar occasion will not shrink from a comparison with that of William Penn. It will not be fully admitted, that William Penn, or any other European colonist, or even the United States at this day, can with jierfect honesty and integrity purchase the lands of the aboriginal natives of America ; for several reasons; — fust, it is not a clear proposition, that savaijes can, for anij consideralioii, enter into ii contract obligatory upon them. They stand by the laws of nations, when trafficking with the civilized part of man- kind, in the situation of infants, incapiible of entering into contracts, especially /or the sale of their country. Should this be denied, it maybe then asserted, that no monarch of a nation, (that is no sachem, chief, or headmen, or assemblage of sachems, &c.) has a power to transfer by sale the country, that is, the soil, of the nation over which they rule. But neither did William Penn, make, nor has any other European since made, a purchase of lands from any tribe or nation of Indians through the agency of any others than their sachems or headmen ; who certainly could have no more right to sell their country, than any European monarch has to sell theirs. But should it be contended, that savages are capable of entering into contracts, and that their sachems have a power to transfer by sale the country of the people over whom they rule, it may be safely asked, — what could William Penn, or at least whiit did he give, which could be considered, in any point of view, as a. consideration or compen- sation to those poor ignorant aborigines for their lauds? If we are to follow Mr. West's imagination, (in his celebrated picture of "Pen.n's treaty with the Indians;") for, history recognizes no such treaty, and the late biographer of William Penn, (Clarkson.) fairly acknowledges, that " in no historian could he find any account of it;" but from -'traditions in Quaker families," and "relations in Indian speeches," it might be inferred, that there was such a treaty; if then, the pencil of the artist is correctly warranted by "tradition," William Penn gave nothing more than some English hroad cloth, or perhaps some beads or other trinkets, which might have been contained in the trunk displayed in the fore ground of the picture, for all the lands, on which he built his city, including also a large portion of his province; and this he seems to have been induced to do, not from his own original perception of the justice of the thing, but, as he acknowledges in his letter to the lords of the council composing the committee of Plantations, dated August 14th, 1083, "that he might exactly follow the hishop of London's counsel, by buying, and not taking away, the native's land." (See this letter at length in Chalmers's Annals, ch. xxi. note 38.) Now, the presents of Leonard Calvert re.ally seem to have been of greater value ; for, besides broad cloth, history says, that ho gave them "axes .and hoes;" thereby endeav- oring to introduce among them, as it were the first rudiments of civilization — the implements of agriculture. With this, it seems, they were as well satisfied to give

'History of Maryland (1837), vol. u, pp. 569-79.

THOMAS) Maryland's policy toward the ixdians 571

up the lauds of St. Mary's, as the ludiau.s of Shackamaxon were to give up those where Philadelphia stauds.

The foregoiug remarks would, perhaps, not have been made, had they not been drawn forth by a part of a speech, which the before-mentioned biographer of AVil- liara Penn has dressed up for him, on the occasion of this celebrated treaty, entirely from "tradition," as he acknowledges, in which he makes him to say to the Indians; — '•that he would not do as the IMariilandcrs did, that is, call thera children or brothers only; for, often parents were apt to whip their children too severely, and brothers sometimes would differ: but he should consider them as the same flesh and blood with the Christians, and the same as if one man's body were to be divided into two parts.''

By section 3 of the act of March 1!», 1638,' it was decreed that —

No subject of his majesty's the kiug of England, or of any other foreigu prince or state shall obtain, procure, or accept of any land within this province from any foreign prince or state, or from any person whatsoever, (the natives owners of the land excepted,) other than from the lord proprietary or his heirs or some person claiming under him or them. — Neither shall he obtain, procure, or accept of any land within this province from any Indian to his own or the use of any other than of " the lord proprietary or his heirs, nor shall hold or possess any laud within this proviuce by virtue of such grant, upon pain that every person oli'ending to the contrary hereof shall forfeit and lose to the lord proprietary and his heirs all such lands so accepted or held without grant of the lord proprietary or nniler him."

It is probable that this hiw was enacted at this time because of the fact that Lord Baltimore's title to some of the lands of the province was disputed by William Clayborne and those who claimed under him. This claim was based upon a royal license he had obtained to trade with the Indians and an alleged purchase from the Indians (Susque- hauocks?) of the Island «f Kent. As it does not appear that the Indian title to this island was subsequently purchased or extinguished bj' the Maryland government, the inference is that, although the lords commissioners of the plantations decided the dispute in Lord Balti- more's favor, the i)nrchase by Clayborne was accepted as an cxtinguish- meut of the Indian title. This is confirmed by the fact that in the treaty with the Susquehanocks in 1652 (mentioned below) it is expressly stated that "the Isle of Kent and Palmer's Island l)elong to Captain Clayborne."

On A^jril 21, 1619, an act entitled "An act concerning purchasing lands from the Indians" was passed, which Bozman says was, as to principle, a law of general utilitj^ even up to his day. The substance of this law as given in Bacon's Collection (unimged) is as follows:

Where.as divers Persons have heretofore purchased or accepted of lands, &c. from the In^Vmns, and made use of and possesed the same, without any lawful Title and Authority derived from the Lord Proprietary, neglecting also to take out Grants from his Lordship, under the Great Seal, for such Lands as have been due to them by virtue of his Lordship's Conditions of Plantations, or other Warrant from his Lordship, which Proceedings are not only very great Contempts anjl Prejudice to ills Lordshii)'s Dignity and Rights, but also of such dangerous Couseiiuence, if not timely prevented, that they may hereafter bring a great Confusion in the Govern- ment and public Peace of this Province. Be it therefore Enacted etc.

' Bozm.in, History of Maryland (1837). vol. u, ]ip. 112-113.

572 INDIAX LAND CESSIONS IN THE UNITED STATES [eth.ann.i8

(1) All Purchases or Acquisitious whatsoever, of any Lands, &c. within this Province, made or to he. made, from any Person whatsoever, not deriving at the same Time a lawful Title thereto, by, from, or under, his Lordship or his Heirs, under the Great Seal, shall be void and null.

(2) It shall be lawful for his Lordship to enter niiou, seize, possess and dispose of, any such Lands, Ac. so i^urcbased or acquired from, any Indian or other, at his Will and Pleasure, unless such Purchaser, at the Time of such Purchase or Acquisition, have some lawful right or Title to such Lands, iVc. by some Grant from his Lordship, &c. under the Great Seal.

(Confirmed among the perpetual Laws, KiTO, ch. 2.)

In regard to this law the author above mentioned remarks, in addi- tion to what has been noted, that "The principle upon which it was founded seems to have been adojited by the United States in the dis- position of all the territories conquered or purchased by them from the Indians.''

It i.s worthy of notice that the lords commissioners for plantations, in the decision between Olaybonie and Loid Baltimore, declared that the principle enacted in the above law held good even against the King. "Their lordships having resolved and declared as abovesaid the right and title to the Isle of Kent and other places in question to be abso- lutely belonging t<> the said Lord Baltimore; and that no plantation or trade with the Indians ought to be within the precincts of his patent without license from him; did therefore think fit and declare that no grant from His Majesty should pass to the said Clayborne or any others, of the said Isle of Kent or other places within the said patent.'"

On the 5th of July, lC,rt2, a treaty was made with the Susquehanocks, the first article of which contained the following cession of land to the English :

First, that the English nation sliall have, hould, and enjoy to them their hcires and assigns for ever, all the land lying from Patuxent river unto Palmer's island on the westerne side of the baye of Chcsepiake, and from Choptauk river to the north east branch which lyes to the northward of Elke river on the eastern side of the said bay with aU the islands, rivers, creeks, . . . fish, fowle, deer, elke, and whatsoever else to the same belonging, excepting the isle of Kent and Palmer's i.sland which belongs to captain Clayborne, But nevertheless it shall be lawful for the aforesaid English or Indians to build a howse or ffort for trade or any such like use or occasion at any tyme upon Palmcr'.s island. -

Bozman thinks that Patuxent river, the southern (or southwestern) limit, on the west side of the bay, of territory assigned by this treaty, was the extent of the Snsquehanock's claim in this direction, as Pow- hatan claimed from James river to the Patuxent. It does not appear, however, how far west the granted territory extended.

As nothing appears after this date to show that other cessions were obtained from Indiiins in this part of the state, it was probably assumed that this grant covered all the territory on the eastern side of the bay north of Dorchester county, and on the western side all east and north

'Bozman, History of Marylaml, vol. ii, ]ip. 584-585; Hazard, Collections, vol, i, ji. 130; CLaliuers, Aluials, ch. IX, note 2.'j. ^Bozman, ibid., p. 682.

o ( 6

of Piituxeiit river. It is also probable that it was assumed tliat the purchase froui the Yoamacoes embraced all the territory west of Patuxeut river aud north of the Potomac as far westward as iio other claim intervened. There is nothing on record, so far- as the writer has been able to And, showing any purchase of land from the Indians, or any treat}^ with them in regard to any lauds west of Monocacy river.

That such was the construction in reference to the latter purchase seems to be indicated by the following fact:

By lO.")! the white population in that part of Maryland comprehend- ing St Mary's county and part of Charles county, had increased to sucli a degree as to expel most of the aborigines thereof from their lands. These Indians were driven out and forced to find homes in the more interior portions of the province. They consisted of the follow- ing tribes: The Mattapaniaus, the Wicomocons, Patuxents, Lamas- consons, Highawixons, aud the Ghapticons, probably divisions or bands of the Piscataway or Conoy. Lord Baltimore, being informed of their distress and their willingness to form a .settlement by them- selves under his protection and government, directed his lieutenant- governor to cause a grant to be made to them under his great seal "of a certain tract of land in the head of Wiconioco river, called Chaptico ■' (in Charles county), containing about 8,000 or 10,000 acres. He further ordered that the land so granted should be erected into a manor, to be called the Calverton Manor, and that a thousand acres thereof should be set apart as the demesnes thereof, to be reserved for his own use, as was usual in his grants of other manors. He also appointed Bobert Clark to be the steward of said manor —

"... aud iu his name to keep court baron and court leet, as occasion should require, in aud for the said manor; and on his behalf to grant, by copy or copies of court roll, copyhold estatis, for one, two, or three lives, of any part of the said manor, except the demesnex thereof, to any Indian or Indians that should desire the same, and as he the said steward, with the api)robatiou of the governor, should think fit; provided, that no one copyhold exceed fifty acres, unless it be to the Werowance or chief head of every of the said six nations respectively; and not to any of them above two hundred acres a piece; aud that upon every copy so to be granted there be reserved .a rent of one shilling sterling, or the value thereof, to be paid yearly to Lord Baltimore and his heirs for every fifty acres of land respec- tively to be granted as aforesaid, and so proportionally for a lesser or a greater quantity of land.'' '

" As the acts of the assembly contain all the subsequent history of the state relating to Indian lands of auy importauce iu this connec- tion, aud within the scope of this work, the substance of these acts is giveii here as fouud iu Bacon aud Kilty's (unpaged) Collectious.

The first of these, after those already given, following the date, is the act of May 8, 16G9 — "An act for the continuation of peace with and pro- tection of our neighbors and confederates, ludiaus on Choptank river."

This act, because of the fidelity of the Choptank Indians iu deliver- ing up certain murderers, etc, settles upon them aud their heirs for-

' Jiozman, ibid., p. 422.

674 INDIAN LAXD CESSIONS IN THE UNITED STATES [eth.axn. 18

ever "All that land on the south side of Choptank river, bounded westerly by the free-hold now in possession of William Darringtou, and easterly with Secretary Sewall's creek for breadth, and for length three miles into the woods. To be held of his Lordship under the yearly rent of six Beaver-skins."

This is confirmed among the j)erpetual laws by the act of 1076 (ch. 2). By the act of 1721 (ch. 12) commissioners were appointed for ascertaining the bounds of these hands, and the same lands are confirmed to them by the act of 1723 (ch. IS).

The next in order of date is an act passed Xovember 12, 1098, ''for ascertaining the bounds of a certain tract of land set apart to the use of the Jfanticoke Indians, so long as they shall occupy and live upon the same." This act falls under the general repeal of 1704 (ch. 77), and a new act in the very same words (the enacting clause excepted) was made in 1701; and by the act-of 1723 the bounds ascertained in this act (which are the same verbatim with those described in the aforesaid act of 1704, ch. .JS) are confirmed.

October 3, 1704. This is the act above referred to under that of November 12, 1G9S. The bounds of the Nanticoke tract as set forth in it are as follows :

That .all tbe Laud, lying and being in Dorchester County, and on the North Side of Xanticohe River, hutted and hounded as followeth; (beginning at the Mouth of Chickniran Creek, and running up the said Creek, bounded tlierewith to the Head of the main Branch of the same, and from the Head of the said main Branch, with a Line drawn to the Head of a Branch issuing out of the North West Fork of Xanti- co/i(, known by the name of Fraiiriii Jnclertoii's Branch, and iVom the Head of the said Branih, down the said Aiiclerii>ii's Branch, bounded tlierewith, to the .Mouth of tlie same, Avhere it falls into the said North West Fork: And from theuce down the aforesaid North AVcst Fork, bounded thrrewith, to the main River: And so ilown the main River to the Mouth of the aforesaid Cliiclauan Creek;) shall be confirmed and assured, and, by virtue of this Act, is coniirmed and assured unto I'dnipiash .and Aniiotoughquiin, and the People under their Government, or Charge, and their Heirs and Successors for ever; any Law, Usage, Custom, or Grant, to the contrary in any wise notwithstanding: To be held of the Lord Propriet.ary, and his Heirs, Lord Proprietary or Lords Proprietaries of this Province, under the yearly rent of one Beaver Skin, to be paid to his said Lordship and his Heirs, as other Rents in this Province by the English used to be paid.'

By an act passed November 3, 1711, commissioners were appointed to set aside 3,000 acres on Broad creek, Somerset county, where the IS'anticokes were then residing, for their use so long as they should occupy the same. The rights acquired by white settlers on these lands were purchased by the province. Instead of vesting the title in the Indians, it was conveyed by this act to certain trustees for their use, with the proviso that when abandoned by these Indians it should revert to the province.

By the act of October 20, 1723, "for quieting the possessions of the Indians inhabiting on Xanticoke and Choptank rivers," their right to the lands heretofore granted them was reaflSrmed as follows: "That

' Bacon's Laws of Maryland, 1765, cbajt. 58, nnder October 3, 1704.

THOMAS] NEW York's policy toward the Indians 075

the iSTauticoke Indians and their descendants shall have, hold, occupy, possess, and enjoy a free, peaceable, and Tiniaterrui)ted possession of all that tract or parcel of laud lying between the northwest fork of Nanticoke river and Chicncone creek, for and during such space of time as they or any of them shall think fit to use, and shall not wholly and totally desert and quit claim to the same, according as the same is butted and bounded." To the Choptank Indians, with the same i>ro- visious, was granted ''that tract of laud lying in Dorchester county, on Choptank river, according to the metes and bouuds thereof as surveyed by the commissioners.

The act of June 22, 176S, authorized tlie payment of 8GGO5 to the Nanticokes for " three certain tracts of laud and also 3,000 acres lying on Broad creek, all in the county of Summerset," which the said Indians agreed to accept as full payment therefor.

By section 4 of the act of March 12, 1780, authority was given to the governor to purchase the Indian lands in Dorchester county. As this was an important act, and specifies somewhat particularly the steps to be adopted in dealing with the Indians in this instance, a copy of the section is given here.

Sec. 4. Aud bu it enacted, That the governor and the council be authorized and requested to appoint some lit and proper person to treat with the Indians entitled, under any act of assembly, to any lands in Dorchester County, for the purchasing the said lands, or .any part thereof, on behalf of this state, and to agree with them on the terras of said purchase for a certain annual sum to be paid to the said Indians as long as any of them shall remain, and to take a deed to the state expressing the conditions, which said deed shall be acknowledged before the general court of the eastern shore, or the court of Dorchester county, in open court, at the election of the said Indians; and if such purchase be made, the person so appointed shall sell the same, at auction, for current money, in such lots or parcels as will probably bring the best price, on ii credit of one third of the purchase money annually until the whole IS paid, with interest annually on the several sums, or the governor and the council may, in their discretion, direct a sale of the said lands for state or conti- nental governraeut securities, and eight weeks notice shall be given previous to the sale in the Maryland, Pennsylvania, Virginia and New York papers.'

A similar act, providing for the purchase of a part of the lands of the Choptank Indians and for limiting their reservation, was passed January 18, ITitO. The reservation was limited to one hundred acres to be laid ofl' so as to include their settlements.

NEW YORK

The discussion of the policy of New York while a colony must of necessity begin with the Dutch settlement at the mouth of the Hud- son known as New Netherland. The exact date of the first white set- tlement of the area now embraced by New York city does not appear to be known. It is stated by the " Report of the Board of Accounts on New Netherland," made in 1644, that "In the years 1622 and 1623, the West India Company took possession, by virtue of their charter, of the said country, and conveyed thither, iu their ship, the New Netherland,

' WiUiam Kilty, Laws of Maryland (unpaged] .

576 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

divers Colonists under the direction of Coruelis Jacobsz. Mey, and Adriaen Jorissz. Tienpoint, which Directors, in the year 1G24, built Fort Orange on the Xorth Kiver, and Fort Xassau on the South River, and after that, in 1026, Fort Amsterdam on the Manhattes.'"' However, it appears to have been subsequent to 1()23 and previous to June, IGJG. On Xovembcr 5, 102(>, Pieter J. Schagen, deputy of the West India Goui- pauy, reported to the States general of Holland as follows: "Yester- day, arrived here the Ship the Arms of Amsterdam, which sailed from New Xetherland, out of the River Mauritius, ou the 23"' September. They report that our peo[ile are in good heart and live iu peace there; the Women also have borne some children there. They have purchased the Island Manhattes from the Indians for the value of CO guilders; 'tis 11,000 morgens iu size. They had all their grain sowed by the middle of May, and reaped by the middle of August," etc.- The West India Company had instructed Peter Minuet to treat with the Indians for their hunting grounds before he tooli any stei)s toward the erection of buildings. According to Martha .1. Lamb ' the purcliase was made the 6th of May, 1626. The i^rice paid, it is true, was very small (but little more thau one dollar for a thousand acres), yet we are told the simple natives accepted the terms with unfeigned delight.

The patent issued to Kiliaen Van Rensselaer, August 13, 1630, was based on a purchase from the Indians, acknowledged before the director and council by them at the time it was issued :

AVe, tbe Director anil Council of New Netherlands, residing on the Island Man- hatas and in Fort Amsterdam, under the authority of their High Mightinesses the Lords States General of the United Netherlands and the Incorporated West India Company, Chamber at Amsterdam, do hereby acknowledge and dechire, that on this day, the date under written, before us appeared and presented tliemselvcs in their proper persons: Kottomack, Nawanemit, Alhautzeene, Sagiskwii and Kaniiomack, owners and proprietors of their respective jiarcels of land, extending up the River, South and North, from said Fort unto a little south of Moeneminnes Castle, to the aforesaid proprietors, belonging jointly and in common, and the aforesaid Nawane- mit's particular laud called Scmesseerse, lying on the East Bank opposite Castle Island off unto the abovementioned Fort; Item, from Petauock, the Jlillstream, away North to Negagouse, in extent about three miles, ^ and declared freely and advisedly for and on account of certain parcels of Cargoes, which they acknowledge to have received in their hands and power before the execution hereof, and, hy vir- tue and bill of sale, to hereliy transport, convey and make over to the Jlr. Kiliaen van Kensselaer, absent, and for whom We, ex officio and with due stipulation, accept the same; namely: the respective parcels of land hereinbefore specitied, with the timber, appendencies and dependencies thereof, together with all the action, right and jurisdiction to them the grantors conjointly or severally belonging, consti- tuting and surrogating the said Jlr. Rensselaer in their stead, state and right, real and ai'tnal possession thereof, and at the same time giving him full, absolute and irrevocable power, authority and special command to hold, iu quiet possession, cul- tivation, occupancy and use, tanquam actor et procurator in rem suam ac propriam, the land aforesaid, acquired by said Mr. Van Rensselaer, or those who may hereafter acquire his interest ; also, to dispose of, do with and alienate it, as he or others should

' New York Colonial nocunii--nt8, vtil. I, p. U'J. ^ History of tbe City of New York, p. 53. ' Ibid., p. 37. * Three Dutch miles equal 12 English luilea.

THOMAS] NEW YORK'!^ POLICY TOWARD THE INDIANS 577

or miglit do with his other and own Lauds and domains aci|uired by <jood and law- fnl title, without the grantors therein retaining, reserving or holding any, the smallest part, right, action or authority whether of projierty, command or jurisdic- tion, lint rather, hereby, desisting, retiring and renouncing therefrom forever, for the behoof aforesaid.'

In the undated " Xew Project of Freedoms and Exemptions,"- but probably drawn up in 1G29, the patrooiis are required by article I'T to purchase the lands from the Indians: -'The Patroons of New Nether- land, shall be bound to purchase from the Lords Sachems in New Neth- erlaiul, the soil where they propose to plant tlieir colonies, and shall acquire such right thereuuto as they will agree for with the said Sachems." By article 33 "All private and poor [unauthorized] people {onrermofien personen) are excluded from these Exemptions Privileges and Freedoms, and are not allowed to purchase any lands or grounds from the Sachems or Indians in New Netherland, but must repair under the jurisdiction of the respective Lords Patroons." This, how- ever, was modified in 1G40 so that "'In the selections of lands, those who shall have first notified and presented themselves to the Company, whether Patroons or private colonists, shall be preferred to others who may follow."^

It would seem from these facts that the colony commenced its deal- ings with the Indians on the just policy of ]jurchasiug from them the land they wished to settle. It was the boast of one of the early gov- ernors, in his correspondence with the New England authorities, that the Dutch had not planted a colony with a desire to seize the laud of the natives or grasp their territory unjustly, but that whatever land they obtained was and would be fairly and honorablj^ purchased to the satisfaction of both parties. Nor does this boasf appear to have been without justification. Their dealings with and treatment of the Indians in other respects may have been in some, possibly many, instances far from proper or honorable, yet their method of extinguishing the Indian title to lauds appears, as a rule, to have been just.

In their attempts to plant colonies on the banks of Connecticut river and on Delaware bay they purchased the desired sites from the Indians.

The i^atroons, in their communication to the States General, refer more than once to the fact that they obtained their lands fi-om the Indians by pijrcliase. For example, in that of June, IG.'Ji, they say, " The Patroons proceeding on daily, notwithstanding, bought and paid for, not only the grounds belonging to the chiefs and natives of the lands in New Netherland, but also their rights of sovereignty and such others as they exercised within the limits of the Patroons" purchased territor- ies." And again, October 25, 1634:, that they have purchased not only lands on "the said river" but likewise on "the South river and others lying to the east of the aforesaid North river." And again, in 1651,

' New York Colonial DocnmeDts, vol. i, p. 44. ^ xbid., vol. ii, pD. 96-100. »Ibid., p. 119.

578 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann. 18

it is asserted that " Immediately after obtaiuing the Charter, the Hon"'''. Directors seut divers ships to New Netherlaud with people and cattle, which people, being for the most part servants of the aforesaid Com- pany, purchased many and various lands; among others, on the North (alias Maurice) river, Staten island, Pavonia, Jloboocken, Nut Island and the Island of Manhattans with many other lauds thereabouts. . . . A very extensive tract of country was also purchased from the Natives, being Mahikanders, 36 leagues up the North river, where Fort Orange was founded." It is stated by James Macauley' that —

Both the English ami the Dutch on Long Island, respected the lights of the ludiaus, and no laud was taken up by the several towns, or by individuals, until it had been fairly purchased of the chiefs, of the tribe who claimed it. The consid- eration given for the laud was inconsiderable in value, and usually consisted of different articles of clothing, implements of hunting and fishing, domestic utensils, and i>6rsonaI ornaments; but appears to have been such in all cases, as was deemed satisfactory by the Indians.

The same author also remarks^ that —

In the Dutch towns it seems that the lauds were generally purchased by the gov- ernor, and were by him granted to individuals. In the English towns in the Dutch territory, the lands were generally purchased of the natives by the settlers, with the consent of the Dutch governor; and in the towns under the Engli-sh, the lands were purchased of the natives by the settlers, originally with the consent of the agent of the Earl of Sterling; and, after his death, the purchases of the Indians were made by the people of the several towns for their common benefit.

It will be observed from this that the method of obtaining the Indian title was not uniform and .systematic, nor kept as strictly under control of the chief colonial authority as it should have been. The practice of permitting individuals, or companies other than municipal authorities acting on behalf of towns, etc, to purchase lands of the natives, even with the consent of the governor or other proper ofQcer, was calculated to, and did afterward, become the cause of much dis- content and dispute in New York.

The first action of the English on this question after coming into possession is shown by permits to purchase granted by Colonel Richard Nicolls. The following are a few examples, though the lands are not all embraced in the present bounds of the state of New York : ^

License to iiurchase Indian Lands at the Nevesinks.

Upon the request of Wm. Goldinge, .lames Grover and .John Browne, in behalf of themselves and their associates, I do hereby authorize them to treate and conclude with the several Sachims of the Nevisp.ns or any others concerned, about the pur- chase of a parcel of lauds lyeiug and being on the maine extending from Chaw- gorauissa near the mouth of the Earitans River unto Pontopecke for the doeing whereof this shall be their warrant. Given under my hand at fort James in New Yorke on Manhattans island this 17"' day of October 1661.

R. Nicolls,

' History of the State of New Tork (1829), vol. n, p, 260.

'Ibid., vol. II, p. 320.

' Colonial Documents of New Tork, vol. xiii, pp. 395 ct seq.

THOMAS] NEW York's policy toward the Indians 579

T.'pou tlio Petitiou of Philipp Pietersen Schuyler Tliat hee may have Liberty to Purchase a certaiue Parcell of Land of the Natives, lying and being near tlort Alliauy, as in the said Petition is exprest; I do hereby grant Liberty unto the said Philips Pietersen Schuyler so to do of ivhicli when hee shall bring a due Certificate unto mee, hee shall have a Patent for the said Lands by Authority from his Royale High- nesse the Dulce of Yorke for the farther Coufiriuation thereof. Given under my hand at ft'ort James in New Y'orke ou Manhatans Island this 30"' daj- of March l(!(5o.

Rich. Nicolls.

Upon the peti(;on of Johannes Clnte and Jan Hcndrick Bruyns, That they may have leave and Liberty to Purc'hase of the Indyaus, a certaiue jjarcell of Land lying and being ou the west side of y= North River aud against Clave Rack near ffort Albany, as in their Petifon is exprest and that they may likewise Plant the same, I do hereby Grant leave and Liberty unto the said Johannes Clnte and Jan Hendrick Bruyns to make Purchase, thereof aud to Plaut it Accordingly, as is desired, of which, when they shall bring unto mee a due certificate. They shall have a patent for the said Lauds by Authority from his Royall Highnesse the Duke of Yorke for their farther Confirmafon therein. Given under my hand at flbrt .Tames in New Yorke this I''' day of April 161)5.

Rich". Nicolls.

Whereas Jan Cloet, Jau Hendricksen Bruyn and .Jnrian Teunisscn have produced before the Court of Albany the consent given to their petition, of his Houour the Governour of New Y'ork, to jiurchase from the Indians a certain paicel of land situate on the west side of the North river opposite to the Claverrack near Fort Albany.

Therefore appeared before me, the undersigned Secretary of Albany, five savages, named Sachamoes, Mawinata, also called Schermerhoorn, Keesie Wey, Papenua, Maweha, owners and proprietors of the said laud, representing the other co-owners, who declared in the presence of the undersigned witnesses, that they have sold, ceded aud transferri'd, as they herewith cede and transfer the same to the real and actual possession of aud for the benefit of the aforesaid Jan Cloet aud Jan Hen- dricksen Bruyu, to wit, the land called Caniskek, which stretches along the river from the laud of Pieter Brouk down to the valley, lying near the point of the main land behind the Baereu Island, called Machaw.ameck, and runs into the woods both at the North and South cuds to the Katskil road. The price for it is a certain sum to bo paid in merchandise, which they, the sellers, acknowledge to have received from the jinrchasers to their full satisfaction; they therefore renounce their former claims and declare Jan Cloet and Jan Hendricksen Bruyn to be the lawful owners of the land, promising, etc.

Thus done at Albany in the presence of Harmen Bastianseu aud Hendrick Gerrit- sen, called in as witnesses, the 20"' of April 166.5 Old Style.

lu another ca.se Colonel Nicolls, acting as '' Governor under his Royall Highnesse the Duke of York," i^urchased a tract of the " Sachems aud people called the Sapes Indyans."

It is perhaps proper to notice a statement by Macauley ' alhiding to an earlier transaction not relating directly to the colony, which, how- ever, shows the disposition of the Dutch to purchase such lands as they wi.shed to settle or occupy: "Between the years 161G and 1020, about twenty pei'sons belonging to the [Dutch East India] Company went from the fort on Dunn's island, below Albany, to Ohnowalagantle, now Schenectady, where they entered into a compact with the Mohawks, from whom they bought some land on which they erected a trading house."

'Op.cit.,p.281.

580 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.ann.13

There is but little on record by which to Judge of the policy adoi)ted ill relatiiin to the dealings of New York with the Indians in reference to their lauds, from the close of Dutch control u]) to the middle of the eighteenth century. A few Items noticed are presented here as having some bearing upon the question.

By the instructions to the Earl of Bellomout, August 31, 1697, he is directed to call before him the Five Nations, and upon their renewing their submission to His Majesty's government he is to assure them that he will protect them as subjects against the French King; and when an opportunity offered for purchasing "great tracts of land for His Maj'y from the Indians for small sums," he was to use his discretion therein as lie Judged for the convenience of or advantage to His Majesty. This was a clear recognition of the Indians' possessory right and an indication of an intention not to disregard it. However, it appears that under the preceding governor (Fletcher) large grants had been nmde to iiulividuals with little regard to the Indians' rights, or unau- thorized or pretended purchases from the Indians. For example, a considerable portion of the Mohawks' land was obtained by fraudulent and unauthorized purchases, and the grants, notwithstanding the l)rotests of the Indians, were conhrmed by Governor Fletcher.'

One of these grants was to Colonel Nicholas Bayard, a member of the council, for a tract on both sides of Schoharie creek, some 21 to 30 miles in length. Another to (lodfrey Dellius, 70 miles in length from Battenkill, Washington county, to Vergennes, in Vermont. One to Colonel Henry Beckmau, for 10 miles square in Dutchess county; and another on Hudson river, 20 miles in length by 8 in width. One to William Smith, a member of the council, on the island of Nassau, containing about 50 sipiare miles. One to Captain Evans, 40 miles in length by 20 in width, embracing i^arts of Ulster, Orange, and Eockland counties, etc.

However, it should be remarked that Governor Fletcher, in his reply to the charges made against him, stated that one of the instructions received from the King was " that when any opportunity should offer for purchasing great tracts of land for him from the Indians for small sums he was to use his discretion therein, as he should judge for the convenience or advantage which might arise to His Ma-jesty by the same," and that the ])arties to whom the grants were made had pre- sented evidence of their purchases from the Indians. It will be observed, however, ^hat these purchases do not appear to have been made for or on behalf of the King, but solely for the individuals named.

On July li), 1701, the deed presented above, under the section relating to the English policy, by the Five Nations to their " Beaver Hunting Ground" was executed. As this has already been referred to, it is unnecessary to add anything concerning it, except to say that it

• New York Colonial Documents, vol. iv, pp. 345, 346.

THOJiAs] NEW York's policy toward the Indians 581

Lad no lasting- eftect nor formed tlie basis of land claims save in regard to some two or tliree grants made by the governor of New York under an erroneous construction. It was, in fact, a step on the part of the Iroquois tribes in the effort to bring themselves more directly under the sovereignty and protection of the English and induce them to take more active measures against the French.

In regaid to this effort Sir William Johnson remarks as follows:

In this Situation therefore the 5 Nations, who were at the head of a Confederacy of ahuost all the Northern Nations, and in whom all their interests were united, did in 1701, resolve upon a measure the most wise and prudent with regard to their own interests, and the most advantageous with regard to Ours, that could have been framed; they delineated upon jiaper in the most precise manner the Limits of what they called their hunting grounds, comprehending the great Lakes of Ontario and Erie, and all the circumjacent Lands for the distance of Sixty miles around them, The sole and absolute property of this Country they desired might be secured to them ; and as a proof of perpetual Alliance, and to support Our Rights against any Claims which the French might make, founded on the vague and uncertain pretence of unlimited Grants or accidental local discovery, they declared themselves willing to yield to Great Britain, the Sovereignty and absolute dominion of it, to be secured and protected by Forts to be erected whenever it should bethought proper.

A Treaty was accordingly entered into and concluded upon these terms by M"- Nanfan then Lieu' Governor of New York; and a Deed of surrender of the Lands, expressing the Terms and Conditions, executed by the Indians.

The advantages of such a concession on the part of the Indians were greater than our most sanguine hopes conld have expected; and had the .Judgment, Zeal and Integrity of those, whose Duty it was faithfnlly to execute the Conditions of the Engagement, been equal to those of him who made it, the Indians might have been forever secured in Our Interest and all disputes with France about American Terri- tory prevented; but by neglect of Government on one hand, and the enormous abuses of Individuals in the purchase of Lands on the other hand, all the solid advantages of this Treatj' and concession were lost, and with them the memory even of the Transaction itself; The Indians were disobliged and disgusted, and many of them joined with the Enemy in the War which fallowed this Treaty, and disturbed our Settlements, whilst the French, to whom this Transaction pointed out what their plan should be, took every measure to get possession of the Country by Forts and Military Establishments; and altho' they were compelled at the Treaty of Utrecht to acknowledge in express terms our Sovereignty over the Six Nations, yet finding We took no Steps to avail Ourselves of such a favourable declaration either by a renewal of Our Engagement with the Indians, or taking measures to support Our 80\-ereignty by forts erected in proper parts of the Country, they ceased not to pursue that Plan, in which they had already made so considerable a progress, and it was not 'till the year 1725, when they had by their Establishment at Niagara, secured to themselves the possession of Lake Ontario, that We saw too late our Error in neglecting the advantages which might have been derived from the Treaty of 1701.'

As referring to the same subject, and as being confirmatory of what is said above in regard to the want of a settled policy, the following remark from the same authority is added :

The Experience We had had of the mischiefs, which followed from a want of a proper regard and attention to our engagement in 1701, increased by the danger which now threatened Our Colonies from the daily and enormous encroachments of

' Documeutary History of New York, vol. ll, p. 778.

582 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.axn. 18

tlio Frencli, ought to have been a Lesson to Us to have heen now more carefnll of Our Interests, hut Yet the same avidity after Possession of Indian Lands, aggravated hy many other Abuses, still remain'd unchecked and uncontroll'd by any jiermanent Plan.'

The change of policy about the middle of the eighteenth centuiy, by Tvhich the control of Indian affairs was brought more immediately under the English government, has been referred to in the section relating to the English iiolicy, and need not be repeated here. One additional item, however, may be cited, as it mentions some of the special grants which were the cause of much complaint on the part of the Indians, and served to induce the government to introduce this change.

In a communication from the Lords of Trade to Justice De Lancey, March 19, 175G, is the following statement:

We have lately had under our consideration the present State of Indian Aft'airs, and as it appears clearly to us, that the Patents of Lands commonly called the Kayoderosseras, Conojohary and that at the Oneida carrying place, which have been made at difterent times, upon pretence of purchases from the Indians, is one of the princijial causes of the decline of our Interest amongst them, and that they can never be induced heartily and zealously to joiu in the just and necessary measures. His Majesty has been compelled to take, for the recovery of his undoubted Rights, until full satisfaction is given them with respect to these grievances, they have so long and so justly complained of; We have thought it our duty, to recommend this matter to Sir Cha» Hardy's serious attention, and to desire he will lay it fully before the C'oum il and Assemblj' to the end that proper measures may be taken for vacating and annulling these exorbitant grants, as were done upon a former occasion of the like kind in 1699. — The many difficulties which will attend the doing this by a legal proces in the Courts are so many and so great, as leave us little room to hope for success from such a measure; and we see no remedy to this great evil, but from the interposition of the Legislature by passing a Law for this purpose, which we have directed the Gov'', earnestly to recommend to them, as a measure which will be for His llaj'y'" service, for their honour and Interest, and for the advantage, security and welfare of their constitvients in general. -

Numerous protests against the Kayoderosseras purchase were pre- sented by the Indians, and the matter was a subject of controversy for a number of years. This is described as "beginning at the half Moon and so up along Hudson's river to the third Fall and thence to the Cacknawaga or Canada creek which is 4 or 5 miles above the Mohawks." A more exact description has doubtless been published, but is not at l^resentat hand; but it is not essential for the i)resent purpose. The tract was a large one, and the regularity of the purchase was disputed by the Indians. However, in 17CS the patentees produced the original Indian deed, and having had the boundaries surveyed, the Indians, on receiving " a handsome sum of money were at length prevailed on to yeild their Claim to the Patentees."

It was about the time of the above-mentioned communication that Governor Morris stated to the Five Nations that " he found by woeful experience that making purchases of lauds was the cause of much blood being shed; he was determined, therefore, to buy no more."

^ Documentary History of New York, vol. u, p. 780. 2 New Tork Colouial Documenta, vol. vn.p. 78.

THOMAS] NEW York's policy toward the Indians 583

lu a "Review of the trade and affairs of the ludiaus in the uorth- eru district of Auierica," written about tliis period by Sir William Johnson, he remarks as follows on the subject of Indian lands:

Whilst the Indian Trade was in this State at the Posts and Frontiers, the inhabit- ants were not idle; the reduction of Canada raised the value of Lands, and those who thought they had not enough (who may be presumed to amount to a very large number), now took every step & employed every low Agent, who understood a little of the Indian language to obtain Tracts for them;— on this head I need not bo par- ticular, having so oftain explained their conduct and pointed out its consefiueuc'cs; however their avidity in pursuit of grants, and these in the most alarming places, the irregular steps which they took to obtain them, the removal [renewal?] of dor- mant titles, and the several greater strides, which were taken as herein before is mentioned, concerned the Indians so nearly, that a general uneasiness took place and spread itself throughout them all. '

Although Johnson speaks more than once in this review of the improper methods — "though forbade by the royal proclamation and express interposition of the Government"— to obtain grants from the Indians, yet he does not inform us ho^v these were perfected. How- ever, as the power of granting laiuls to individuals remained in the governor of the state, they must have been perfected, so far as this was accomplished, through him. It is proper to add, however, that Cadwallader Colden, writing to the Lords of Trade in 17Ci, seems to differ somewhat from Johnson:

As to that part of the plan, which respects the purchasing of Land from tho Indians, I think it necessary to observe, that the regulations which have been estab- lished, and constantly loUowed in this province, for upwards of twenty years, appears to have been eft'ectual and convenient, no complaints having been made by Indians, or others, on any purchases made by authority of this Gov"' since that time. By these regulations all lauds purchased of the Indians, are previously to be surveyed by the King's surveyor General of Lands, or his Deputy, in the presence of some Indians deputed for that purpose, by the Nation from whom the purchase is made. Of late years the Deputy Surveyors are not only sworn, but give Bonds, to the Surveyor General, for the due and faithful execution of their work. By this means the employing of persons, who have not sufficient skill, or of whose integrity one can not be so well assured, is prevented, and the Surveyor Gen' is enabled, to comi)leat a general Map of the Province an<l to locate the several grants precisely, which cannot be done, if Surveyors, not un.ler the Direction of the Surveyor Gen- eral, be employed. The Sur%'eyor General in this Province, makes a return of the Survey, )ipou every Indian purchase, into the Secretaries Office. -

This relates apparently to the ofiQcially authorized purchases, and not to those which Johnson alludes to as obtained by fraud. However, as the evidence shows, and as a remedy was applied, it is presumable that Johnson's statement is correct.

A close of this ill advised and unfortunate course was at last at hand. Orders, iiroclamations, and instructions, as already shown, had been promulgated by the English government for the purpose of remedying this, but a practical and satisfactory method of solution was not reached until 17C5. It was then proposed that a fixed and well defined

i;New York Ci)lonial Documents, vol. vu, p. 961. ' Ibid., p. 670.

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584

INDIAX LAND CESSIOXS TX THE UNITED STATES [eth.axn. 18

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bomidary or dividing line between the \yliites and tbe Indians sbonld be niailied out, and that the whites should be absohitely prohibited from settling- beyond it under any pretense. This agreement was perfected at the treaty of Fort Stauwix in 1708. The line agreed npon at this treaty with the Six jSTations was as follows:

We tbe said Indians Have for us autl our Heirs and Successors granted bargained sold released and confirmed and liy these presents do Grant bargain sell release and confirm unto onr said Sovereign Lord King George the third, All that Tract of Land situate in North America at the Back of the liritish Settlements bounded by a Line which we have now agreed ujion and do hereby establish as the Boundary between us and the British Colonies in America beginning at the Mouth of Cherokee or Hogohege River where it emptys into the Kiver Ohio and running from thence upwards along the South side of said River to Kittaning which is above Fort Pitt from thence by a direct Line to the nearest Fork of tlie west branch of Susnuehanua thence through the Allegany Mountains along the South side of the said West Briiuch untill it comes opposite to the mouth of a Creek callek (sic) Tiadaghtou thence across the West Branch and along the South Side of that Creek and along the North Side of Burnetts Hills to a Creek called Awandae thence down the same to the East Branch of Susquehanna and across the same and up the East side of that River to Oswegy from thence East to Delawar River and up that River to opposite where Tianaderha falls into Susquehanna thence to Tianaderha and up the West side of its West Branch to the head thereof and thence by a direct Line to Canada Creek where it emptys into the wood Creek .-it the West of the Carrying Pl.aco beyond Fort Stan wix; and extending Eastward from every part of the said Line as far as the Lands formerly purchased so as to comprehend the whole of the Lands between the said Line and the purchased Lands or settlements, except what is within the Prov- ince of Pensilvania.'

But it was provided "that tbe lands occupied by the Mohocks around their villages, as well as by any other nation affected by this cession, may effectually remain to them and to their posterity."

As the Indian titles subsequent to this date were obtained by treaties on the part of tbe state government or the United States, it is unneces- sary to allude to them, especially as most of them are mentioned by Mr Eoyce in the Schedule. The policy pursued by the United States bad now been fully adopted, and the Indian titles, witb some minor reserves, were finally extinguished in accordance therewith.

This policy was incori)orated in the state constitution of 1777, as shown by the following clause:

And whereas, it is 6f great importance to the safety of this State, that jieace and amity with the Indians within the same be at all times supported and maintained : And whereas, the frauds too often practised towards the said Indians, in contracts made for their lands, have iu divers instances, been productive of dangerous dis- contents and animosities:

Be it ordained, That no purchase or contracts for the sale of lands made since the fourteenth day of October, in the year of our Lord, one thousand seven hundred and seventy-five, or which may hereafter be made with any of the said Indians, within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent, of the Legislature of this State. -

1

' New York Colonial Documents, vol. vni, p. 136.

'Laws of Colonial and S'ate Governments in Kegard to Indian Aflairs, 1832, p. 61.

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NEW YOBK's policy TOWARD THE INDIANS

685

It will be observed that the state acknowledged, in the most solemn manner possible, the frauds practiced on the Indians in regard to their lands.

IS'nmerous acts were subsequently passed by the legislature in regard to Indian lauds, but one only of these, which is general in its scope, is here noticed. This act, wliich was passed in 1788, is as follows :

AN" ACT to punish infractions of that article of the Constitution of this State, prohibiting pur- chases of lands from the Indians, without the authority and consent of the Legislature, and more eflectually to provide against intrusions on the unappropriated lauds of this State.

Whereas, by the thirty-seventh .section of the Constitution of this State, reciting that it is of great importance to the safety of this State, that peace and amity with the Imliaus within the same be at all times supported and maintained ; and that the frauds too often jjracticed towards the said Indians, in contracts made for their lands, have, in divers instances, been productive of dangerous discontents and animosities; it is ordained, that no purchases or contracts for the sale of lands, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which might thereafter l>e made with, or of the said Indians within the limits of this .State, shall be binding ou the said Indians, or deemed valid, unless made underthe author- ity, and with the consent of the Legislature of this State. In order, therefore, more eft'ectually to provide against infractions of the Constitution in this respect,

1. Be it ciiacfetl hij the people of the State of Xeie York, represented in Senate and Astemili/, and it is herein enaeled bj the aulhoritij of the same, That if any person shall hereafter, unless under the authority, and with the consent of the Legislature of this State, in any manner or form, or any terms whatsoever, purchase any lauds within the limits of this State, or make contracts for the sale of lands within the limits of this State, with any Indian or Indians residing within the limits of this State, every person so purchasing, or so making a contract, shall be deemed to have oft'euded against the people of this State, and shall, on conviction, forfeit one hun- dred pounds to the people of this State, and shall be further punished by line and imprisonment, in the discretion of the court.

2. And he it further enaeled hy the anthoritij aforesaid, That every person who shall hereafter give, convey, sell, demise, or otherwise dispose of or otter to give, convey, sell, demise, or otherwise dispose of any lands within the limits of this State, or any right, interest, part or share, of or in any lands within the limits of this State, to intrude, or enter on, or take po.sse.ssion of, or settle on any lauds within the limits of this State, pretending or claiming any right, title, or interest in snch lands by virtue, under colour, or in consciinence of any purchase from, or contract for the sale of lands m.ade with any such Indian or Indians as aforesaid, at any time since the four- teenth da.y of October, one thousaud seven hundred and seventy-live, and not under the authority, aiul with the consent of the Legislature of this State, every snch per- son shall be deemed to have otfeuded against the people of this State, and shall on conviction, forfeit the sum of one hundred pounds to the people of this State, and be further punished by tine and imprisonment, in the discretion of the court.

And he it further enacted bij the authority aforesaid. That if any persons other than Indians, shall, after the p.assing of this act, take possession of, or intrude or settle on any of the waste or uugranted lands of this State, lying eastward of the lands ceded by this State to the Commonwealth of Massachusetts, and westward of the line or Hues commonly called the Line of Property, agreed on between the Indians .and the Superiutendeut of Indian aft'airs, in the year one thousand seven hundred and sixty-eight, every person so taking possession of, or iutruding or settling on au.y such waste or uugranted lands, withiu the limits aforesaid, shall be deemed as holding such lands by a foreign title, against the right and sovereignty of the people of this State; and it shall and may be lawful for the person ailministering the government of this State for the time being, and it is herebj' declared to be his duty to remove,

584 INDIAN LAND CEPSIONS IN' THE UNITED STATES [eth.axx.IS

bouudary or dividing line betweeu the whites and the Indians should be marked out, and that the whites should be absolutely prohibited from settling- beyond it under any jiretense. This agreement was perfected at the treaty of Fort Stanwix in ITOS. The line agreed upon at this treaty with the Six Nations was as follows:

We tlie said Indians Have for us and our Heirs and Successors granted bargained sold released and confirmed and by these presents do Grant bargain sell release and confirm unto our said Sovereign Lord King George the third, All that Tract of Land situate in North America at the Back of the British Settlements bounded by a Line which we have now agreed upon and do hereby establish as the Boundary between us and the British Colonies in America beginning at the Mouth of Cherokee or Hogohege Eiver where it emptys into the River Ohio and running from thence ujiwards along the South side of said River to Kittaning which is above Fort Pitt from thenee by a direct Line to the nearest Fork of