the French, ought to have been a Lesson to Us to have been now more carefull of Our Interests, but Yet the same avidity after Possession of Indian Lands, aggravated by many other Abuses, still remain'd unchecked and uncontroll'd by any permanent Plan.'

The change of policy about the middle of the eighteenth century, by which the control of Indian affairs was brought more immediately under the English government, has been referred to in the section relating to the English policy, 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, 1756, is the following statement:

We have lately had under our consideration the present State of Indian Affairs, 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 different times, upon pretence of purchases from the Indians, is one of the principal causes of the decline of our Interest amongst them, and that they can never be induced heartily and zealously to join 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 Chas Hardy's serious attention, and to desire he will lay it fully before the Coun il and Assembly 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 Majty's service, for their honour and Interest, and for the advantage, security and welfare of their constituents in general.2

Numerous protests against the Kayoderosseras purchase were presented 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 present at hand; but it is not essential for the present purpose. The tract was a large one, and the regularity of the purchase was disputed by the Indians. However, in 1768 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 lands was the cause of much blood being shed; he was determined, therefore, to buy no more."

1 Documentary History of New York, vol. II, p. 780.

2 New York Colonial Documents, vol. VI, p. 78.

In a "Review of the trade and affairs of the Indians in the northern district of America," written about this 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 inhabitants 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 be particular, having so oftain explained their conduct and pointed out its consequences; 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 dormant 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.1

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 how these were perfected. However, as the power of granting lands 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 1764, seems to differ somewhat from Johnson:

As to that part of the plan, which respects the purchasing of Land from the Indians, I think it necessary to observe, that the regulations which have been established, and constantly followed in this province, for upwards of twenty years, appears to have been effectual and convenient, no complaints having been made by Indians, or others, on any purchases made by authority of this Govt since that time. By these regulations all lands 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 thi 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 compleat a general Map of the Province and to locate the several grants precisely, which cannot be done, if Surveyors, not under the Direction of the Surveyor General, be employed. The Surveyor General in this Province, makes a return of the Survey, upon every Indian purchase, into the Secretaries Office.

This relates apparently to the officially 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, proclamations, 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 1765. It was then proposed that a fixed and well-defined

New York Colonial Documents, vol. VII, p. 961.

18 ETH, PT 2———5

2 Ibid., p. 670.

boundary or dividing line between the whites and the Indians should be marked out, and that the whites should be absolutely prohibited from settling beyond it under any pretense. This agreement was perfected at the treaty of Fort Stanwix in 1768. The line agreed upon at this

treaty with the Six Nations was as follows:

We the 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 River where it emptys into the River 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 the west branch of Susquehanna thence through the Allegany Mountains along the South side of the said West Branch untill it comes opposite to the mouth of a Creek callek (sic) Tiadaghton 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 Awandãe 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 at the West of the Carrying Place beyond Fort Stanwix 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 Province of Pensilvania.1

But it was provided "that the 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 the state government or the United States, it is unneces sary to allude to them, especially as most of them are mentioned by Mr Royce in the Schedule. The policy pursued by the United States had now been fully adopted, and the Indian titles, with some minor reserves, were finally extinguished in accordance therewith.

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

And whereas, it is of great importance to the safety of this State, that peace 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 in divers instances, been productive of dangerous discontents 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. VIII, p. 136.

2 Laws of Colonial and State Governments in Regard to Indian Affairs, 1832, p. 61.

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.

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

AN ACT to punish infractions of that article of the Constitution of this State, prohibiting purchases of lands from the Indians, without the authority and consent of the Legislature, and more effectually to provide against intrusions on the unappropriated lands 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 Indians within the same be at all times supported and maintained; and that the frauds too often practiced 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 be made with, or 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. In order, therefore, more effectually to provide against infractions of the Constitution in this respect,

1. Be it enacted by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority 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 lands 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 offended against the people of this State, and shall, on conviction, forfeit one hundred pounds to the people of this State, and shall be further punished by fine and imprisonment, in the discretion of the court.

2. And be it further enacted by the authority aforesaid, That every person who shall hereafter give, convey, sell, demise, or otherwise dispose of or offer 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 possession of, or settle on any lands within the limits of this State, pretending or claiming any right, title, or interest in such lands by virtue, under colour, or in consequence of any purchase from, or contract for the sale of lands made with any such Indian or Indians as aforesaid, at any time since the fourteenth day of October, one thousand seven hundred and seventy-five, and not under the authority, and with the consent of the Legislature of this State, every such person shall be deemed to have offended 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 fine and imprisonment, in the discretion of the court.

And be it further enacted by the authority aforesaid, That if any persons other than Indians, shall, after the passing of this act, take possession of, or intrude or settle on any of the waste or ungranted lands of this State, lying eastward of the lands ceded by this State to the Commonwealth of Massachusetts, and westward of the line or lines commonly called the Line of Property, agreed on between the Indians and the Superintendent of Indian affairs, in the year one thousand seven hundred and sixty-eight, every person so taking possession of, or intruding or settling on any such waste or ungranted lands, within 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 administering the government of this State for the time being, and it is hereby declared to be his duty to remove,

or cause to be removed, from time to time, by such means, and in such manner as he shall judge proper, all persons other than Indians who shall so take possession of or settle or intrude on any of the waste or ungranted lands of this State, within the limits aforesaid, and to cause the buildings or other improvements of such intruders on such lands, to be destroyed; and for that purpose, in his discretion, to order out any proportion of the militia from any part of this State, and such an occasion to be deemed an emergency, intended in the second section of the act entitled "An act to regulate the militia," passed the fourth day of April, 1786. And the detachments so from time to time to be ordered out, shall receive the same pay and rations, and be subject to the same rules and regulations, as is provided in the said section of the said act.1 Before closing this section, the following remarks by Yates and Moulton in regard to the policy of the State of New York in this respect are presented, in order that they may be considered in connection with the facts which have been given:

In New York, prior to the confederacy of the Union, the same principle as that which was confirmed in Virginia was adopted as an article (37) of the constitution of 1777, and reincorporated in that of 1822 (article 7, section 12). It rendered contracts made with the Indians void unless sanctioned by the legislature. Before and since the adoption of the constitution of the United States various legislative provisions have been made relative to the different Indian tribes and nations within the State. Judicial decisions have also followed some of which were deemed to run counter to the broad principle as settled in the last case by the courts, and were therefore reversed directly or virtually. But it had been early settled that possession of Indians did not invalidate a patent from the State, and that sales by Indians were void made to the whites without legislative sanction. But in the final decision of the Court of Errors, it was considered, that from the constitutional provisions of the State, from the object and policy of the act relative to the different tribes and nations within this State, declaring such purchases (without legislative sanction) a penal offence; from the construction in pari materia of the whole code of Indian statute law, from the special act of 1778 to that of 1810; from a review of the history of the Six nations from their first alliance with the Dutch until the surrender of the colony to the English, and from the time when they placed themselves under the protection of the latter to the present period, having for more than a century been under their and our protection; from the resolutions of Congress and our public treaties, all combining to elucidate the principle of pre-eminent claim, and from the whole scope and policy of these constitutional and legislative provisions originating in the cautious and parental policy of government to protect the Indians in the possession of their lands from the frauds and imposition, superior cunning, and sagacity of the whites; they were to be deemed as incapable of aliening as inoper concilii, and therefore, that, although they are regarded not as citizens, but as independent allies, or alien communities, still continuing under the protection of government, and exempt from the civil municipal laws which regulate citizens, (though not from the operation of our criminal code for crimes committed within our jurisdictional limits, though among themselves) nevertheless, all contracts for lands, whether from a tribe or nation-from Indians or from an individual Indian, whether such individual be an Indian heir deriving from a military grant from government, (which though presumed from lapse of time to have issued lawfully, must be construed as a grant to the Indian and his Indian heirs and assigns) yet such is their total incapacity to convey to whites, that all contracts for lands are not only void, but reciprocally inoperative, except such individual sales as shall first receive, pursuant to the act of the legislature, the approval of the Surveyor General of the State, to be indorsed on the deed from such Indian.

1 Laws of Colonial and State Governments in Regard to Indian Affairs, pp. 63–65.

2 History of New York (1824), vol. 1, pp. 308-10.