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The question of the honorableness of the United States' dealings with the Indians turns largely on a much disputed and little understood point. What was the nature of the Indians' right to the country in which they were living when the continent of North America was discovered? Between the theory of some sentimentalists that the Indians were the real owners of the soil, and the theory of some politicians that they had no right of ownership whatever in it, there are innumerable grades and confusions of opinion. The only authority on the point must be the view and usage as accepted by the great discovering Powers at the time of discovery, and afterward in their disposition of the lands discovered.

Fortunately, an honest examination of these points leaves no doubt on the matter.

England, France, Spain, little Portugal—all quarrelling fiercely, and fighting with each other for the biggest share in the new continent-each claiming “sovereignty of the soil" by right of priority of discovery — all recognized the Indians' "right of occupancy" as a right; a right alienable in but two ways, either by purchase or by conquest. All their discussions as to boundaries, from 1603 down to

1776, recognized this right and this principle. They reiterated, firstly, that discoverers had the right of sovereignty-a right in so far absolute that the discoverer was empowered by it not only to take possession of, but to grant, sell, and convey lands still occupied by Indians—and that for any nation to attempt to take possession of, grant, sell, or convey any such Indian-occupied lands while said lands were claimed by other nations under the right of discovery, was an infringement of rights, and just occasion of war; secondly, that all this granting, selling, conveying was to be understood to be “subject to the Indians' right of occupancy,” which remained to be extinguished either through further purchase or through conquest by the grantee or purchaser.

Peters, in his preface to the seventh volume of the “United States Statutes at Large," says, “The history of America, from its discovery to the present day, proves the universal recognition of these principles."

Each discovering Power might regulate the relations between herself and the Indians; but as to the existence of the Indians' “ right of occupancy,” there was absolute unanimity among them. That there should have been unanimity regarding any one thing between them, is remarkable. It is impossible for us to realize what a sudden invitation to greed and discord lay in this fair, beautiful, unclaimed continent- eight millions of square miles of land-more than twice the size of all Europe itself. What a lure to-day would such another new continent prove! The fighting over it would be as fierce now as the fighting was then, and the “right of occupancy” of the natives would stand small chance of such unanimous recognition as the four Great Powers then justly gave it.

Of the fairness of holding that ultimate sovereignty belonged to the civilized discoverer, as against the savage barbarian, there is no manner nor ground of doubt. To question this is feeble sentimentalism. But to affirm and uphold this

is not in any wise to overlook the lesser right which remained; as good, of its kind, and to its extent, as was the greater right to which, in the just nature of things, it was bound to give way.

It being clear, then, that the Indians' “ right of occupancy' was a right recognized by all the great discovering Powers, acted upon by them in all their dispositions of lands here discovered, it remains next to inquire whether the United States Government, on taking its place among the nations, also recognized or accepted this Indian “right of occupancy" as an actual right. Upon this point, also, there is no doubt.

“By the treaty which concluded the War of our Revolution, Great Britain relinquished all claims not only to the government, but to the proprietary and territorial rights of the United States whose boundaries were fixed in the second Article. By this treaty the powers of the government and the right to soil which had previously been in Great Britain passed definitely to these States. We had before taken possession of them by declaring independence, but neither the declaration 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 lands within the boundary-lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive right to extinguish that right was vested in that government which might constitutionally exercise it."*

“Subject to the Indian right of occupancy." It is noticeable how perpetually this phrase reappears. In their desire to define, assert, and enforce the greater right, the “right of sovereignty," the makers, interpreters, and recorders of law did not realize, probably, how clearly and equally they were defin

* Peters, United States Statutes at Large, vol. vii.

ing, asserting, and enforcing the lesser right, the “right of occupancy."

Probably they did not so much as dream that a time would come when even this lesser right — this least of all rights, it would seem, which could be claimed by, or conceded to, an aboriginal inhabitant of a country, however savage-would be practically denied to our Indians. But if they had foreseen such a time, they could hardly have left more explicit testimony to meet the exigency.

“The United States have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They bold 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 conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.

“The power now possessed by 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 exercised uniformly over territories in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish the right. This is incompatible with an absolute and complete title in the In


* Peters.

Certainly. But it is also “incompatible with an absolute and perfect title” in the white man! Here again, in their desire to define and enforce the greater right, by making it so clear that it included the lesser one, they equally define and enforce the lesser right as a thing to be included. The word “subject” is a strong participle when it is used legally. Provisions are made in wills, “subject to" a widow's right of dower, for instance, and the provisions cannot be carried out without the consent of the person to whom they are thus declared to be “subject.” A title which is pronounced to be “subject to” anything or anybody cannot be said to be absolute till that subjection is removed.

There have been some definitions and limitations by high legal authority of the methods in which this Indian “right of occupancy” might be extinguished even by conquest.

"The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established 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. Usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. *** When this incorporation is practicable. humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old. * * * When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him, and he cannot neglect them without injury to his fame, and hazard to his power."*

* Peters, United States Statutes at Large, vol. vii.

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