Appendix to the Answer of the

United States.

PART I.

Relations of Civilized Nations with the

Indians Prior to 1776.

RELATIONS OF CIVILIZED NATIONS WITH THE

INDIANS PRIOR TO 1776

EXHIBIT 1.

The French Policy.1

A somewhat thorough examination of the documents and histories relating to French dominion in Canada 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 kept in the 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:2

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 undertake, we have given, granted, and conceded, do give, grant, and concede to her, by these present letters and forever, all the lands, coasts, ports, havens, and islands which compose our province of Louisiana, in the same way and extent as we have granted them to M. Crozat by our letters patent 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 new reign, with a golden crown of the weight of thirty marks.

'Eighteenth Annual Report of the Bureau of American Ethnology, 1896-1897, pt. 2, p. 545.

2B. F. French, Historical Collections of Louisiana, pt. 3, 1851, pp. 50, 51 [Appearing in original text.]

3

SEC. VI. The said company shall be free, in the said granted lands, to negotiate and make alliance in 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 in 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 Hundred Associates, while France was struggling, through the leadership of Champlain, to obtain a permanent settlement on the St Lawrence.1

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 take possession, at first, of those points at which they desired to make settlements by peaceable measures if possible, though without any pretense of purchase, thus obtaining a foothold. Either preceding or following such settlement, a treaty was made with the tribe, obtaining their consent to come under the dominion of the King of France and acknowledging

1J. G. Shea, Charlevoix's Hist. New France, Vol. II, p. 39. [Appearing in original

him as the only rightful ruler over themselves and their territory. As an illustration of this statement, attention is called to the following paragraph:1

What is more authentic in this matter is the entry into possession of all those Countries made by M'. Talon, Intendant of New France, who in 1671, sent Sieur de S'. Lusson, his Subdelegate, into the country of the 8tauas, who invited the Deputies of all the tribes within a circumference of more than a hundred leagues to meet at S'. Mary of the Sault. On the 4th of June, of the same year, fourteen tribes by their ambassadors repaired thither, and in their presence and that of a number of Frenchmen, Sieur de S'. Lusson erected there a post to which he 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 be 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 differing materially from the method adopted in similar cases by other governments, yet it would seem from their dealings with the Indians that the French considered this ceremony, where the Indians were persuaded to join in it, as absolutely passing to the Crown their possessory right.

The commission to Marquis de Tracy (November 19, 1663), bestowing on him the government of Canada, contains the following passage, which indicates reliance on the power of arms rather than in peaceful measures:

2

'Denonville, Memoir on the French Limits in North America, New York Colonial Documents, Vol. IX, p. 383. [Appearing in original text.]

"New York Colonial Documents, Vol. IX, p. 18. [Appearing in original text.]