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INDIAN RELATIONS OF THE UNITED STATES.
Policy of the United States.
As already observed, the policy of the United States respecting the process of obtaining or extinguishing the Indian title to their lands was outlined, while the government was conducted under the Articles of Confederation. By a "clause of No. ix” of the "Articles of Confederation," it was agreed that “The United States in Congress assembled shall have the sole and exclusive right and power of * * regulating the trade and managing all affairs 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."
By the proclamation of September 22, 1783, all persons were prohibited "from making settlements on lands inhabited or claimed by Indians without the limits or jurisdiction of any particular state, and from purchasing 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 will be seen from this that the prohibition was not limited to lands in the actual use and possession of and occupied by the Indians, but extended to that claimed by them. It will also be observed that by the Articles of Confederation and as implied in this proclamation (or act of Congress) the sole authority in this respect is limited to “The United States in Congress assembled.”'
Although the theory and policy implied in the prohibitory clause have been maintained under the Constitution, there has been a change as to the “authority” which may act. The clause of the Articles of Confederation was not inserted in the Constitution, either in words or in substance. As power to regulate the commerce with the Indians is the only specific mention therein of relations with the natives, the authority to act must be found in this clause, in that relating to making treaties, and in the general powers granted to the Congress and the Executive.
Eighteenth Annual Report of the Bureau of American Ethnology, 1896–1897, pt. 2, p. 639.
An examination of the treaties, agreements, executive orders, acts of Congress, etc, referred to in the schedule which follows, will show that there are various methods of dealing with the Indians in regard to lands, and that these methods have not been entirely uniform.
According to the Annual Report of the Commissioner of Indian Affairs for 1890 (page XXIX), “From the execution of the first treaty made between the United States and the Indian tribes residing within its limits (September 17, 1778, with the Delawares) to the adoption of the act of March 3, 1871, that ‘no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' the United States has pursued a uniform course of extinguishing the Indian title only with the consent of those tribes which were recognized as having claim to the soil by reason of occupancy, such consent being expressed in treaties.
Except only in the case of the Sioux Indians in Minnesota, after the outbreak of 1862, the Government has never extinguished an Indian title as by right of conquest; and in this case the Indians were provided with another reservation, and subsequently were paid the net proceeds arising from the sale of the land vacated.”
It would appear from this that until March 3, 1871, Indian titles to lands were extinguished only under the treaty-making clause of the Constitution. Treaties with Indians, even though the tribe had been reduced to an insignificant band, were usually clothed in all the stately verbiage that characterized a treaty with a leading European power.
Robert R. Livingston to Benjamin Franklin.'
PHILADELPHIA, January 7, 1782. Dear Sir: As it does not appear improbable that the humiliation and misfortunes of Great Britain may produce the same sentiments which a spirit of moderation dictates to the other belligerent powers, and lead her to concur with them in their
Wharton's Revolutionary Diplomatic Correspondence of the United States (1889), Vol. V, p. 87.
wishes for peace, it cannot be improper to acquaint you with the objects America most wishes to attain, and to furnish you with the arguments on which they found their claim to them. For such is the confidence, not only in the justice of his Most Christian majesty, but in his friendship, that they firmly persuade themselves that he will not only preserve for them their undoubted rights, but that he will even go so far as to procure for them those advantages they may reasonably demand on the close of a successful war; and I am perfectly satisfied that the loose hints that a detail of their sentiments may afford you and our other commissioners will be strengthened and improved by your lights in such manner as to come before his majesty in the most advantageous form.
The first point of discussion will be the limits of the United States. The instructions given to Mr. Adams on the day of
last explain the wishes of Congress on that subject, nor can they admit of many doubts, except so far as they relate to our southern extent, the boundary between us and Canada being very well ascertained by grants, charters, proclamations, and other acts of government, and more particularly by the settlements of people who are engaged in the same cause with us, and who have the same rights with the rest of the subjects of the United States.
Our western and northwestern extent will probably be contested with some warmth, and the reasoning on that subject be deduced from general principles and from proclamations and treaties with the Indians.
The subject is undoubtedly intricate and delicate, yet upon candid investigation I believe it will appear that our extension to the Mississippi is founded in justice, and that our claims are at least such as the events of the war give us the right to insist upon. Your situation furnishing you amply with the various documents on which Great Britain founded her claim to all the country east of the Mississippi previous to the treaty of Paris, I will not trouble you with references to them, which would at any rate be imperfect, from the want which prevails here of books and papers. Taking it for granted that the King of Great Britain was entitled to that extent of country (which he at least cannot contravene), it only remains to examine how far he considers it as within the limits of some or other of the United States, because he can no more pretend to abridge those limits than claim by any other right of which the United States are in possession.
His idea of these limits is apparent from charters granted by the crown; and from recent grants made by its representatives in several of the States it appears that they considered their authority to grant lands to the westward as coextensive with the right of Great Britain, unless they were restricted by their interference with other governments. Upon this principle the servants of the crown in New York granted land on the border of Lake Erie to the westward of Niagara. And Virginia, even after the proclamation of 1763, patented considerable tracts upon the Ohio far beyond the Appalachian Mountains. It is true the several governments were prohibited at different times from granting lands beyond certain limits, but these were clearly temporary restrictions, which the policy of maintaining a good understanding with the natives dictated, and were always broken through after a short period, as evinced by the grants above mentioned made subsequent to the proclamation in 1763. And indeed the proclamation itself furnishes a substantial argument of the opinion of Britain with respect to the right which some of the States had to extend to the westward of the limits it prescribed, otherwise it would not have been necessary to prohibit their governors from granting, as their patents would in such cases have been invalid, and themselves subjected to the censure of their master, upon whom they were dependent. Unless, therefore, these proclamations absolutely destroyed the right, they must be considered as proofs of its existence at least, after they were issued. The slightest examination of them shows that they did not take away, but restrained an existing right, and the subsequent grants by the governors evidence that they were, as is before asserted, mere temporary restrictions. The same reasoning applies to the treaty at Fort Stanwix, and to other arguments taken from treaties with the Indians. Strong evidence in our favor is also found in the map made by the king's geographer, in which Virginia and the Carolinas are laid down as extending to the Mississippi, shortly after the last war. Arguments may be drawn against us from the Quebec bill, but as this is one of the laws that occasioned the war, to build anything upon it would be to urge one wrong in support of another. But this matter may perhaps be seen in a different light, and our pretensions placed upon a more extensive basis, by recurring to general principles and asking whence Great Britain derived her right to the waste lands in America.
Evidently from the allegiance which a subject is supposed to carry with him wherever he goes, even though he dislikes his constitution and seeks one that pleases him better. Upon this false principle the oppressed subjects of Great Britain, seeking freedom in the wilds of America, were supposed to extend to it the sovereignty of the kingdom they had left. The rights of the King of Great Britain, then, to America were incident to his right of sovereignty over those of his subjects that settled America and explored the lands he claims. For the idea of right derived from mere discovery, and the vain ceremony of taking possession without planting and continuing that possession is now fully exploded. If, then, we admit what is necessary to our independence, that the right of sovereignty over the people of America is forfeited, it must follow that all rights founded on that sovereignty are forfeited with it; and that upon our setting up a new sovereign in America, the rights which the first claimed as such devolve upon the second. Upon this principle Great Britain is left without a foot of land in America beyond the limits of those governments which acknowledge her jurisdiction.
It is vain to say that the King of Great Britain holds these back lands by a cession from other powers, since those cessions were grounded upon a prior claim derived through the people of America, and only served to confirm the right which they gave the King of Great Britain while he was their sovereign, and which he loses with his sovereignty over them. This mode of reasoning is warranted by the practice Great Britain uniformily held of treating with the Indian nations through their American governors, who have frequently executed with them the most solemn acts, and sometimes extended the king's protection to the nations who occupy the waste lands which are the subject of our present claim. The expense of retaining these in friendship almost always devolved upon the respective States, who, till lately, particularly in New York, voted the sums necessary to support smiths among them and to procure the presents which were annually made them. From hence, then, it follows that if the King of Great Britain has any right over the back lands in America it must be as king of the people of America; ceasing to be king of those people, his right also ceases. If he has no right over the back lands but merely