Sunday, April 22, 2007

The Treaty of Hopewell

I thought you guys might want to see an example of a treaty. Just so you know what many of them looked like, and what they included. So here is the Treaty of Hopewell, and this was done between the US and the Cherokee Nation. I am posting this because it is interesting to read a treaty, and because this one is kind of important. More on why, next time I write.

Basically all you have to know here is that the US did draft a lot of treaties with the indians, and they did this up until 1871, when Congress stopped treatying, but did agree to honor all treaties forever that had been entered into up to that point.


Treaty of Hopewell
November 28, 1785
7 Stat. 18

Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew Pickens, Joseph Martin, and Lachlan M'Intosh, Commissioners Plenipotentiary of the United States of America, of the one Part, and the Head-Men and Warriors of all the Cherokees of the other.

The Commissioners Plenipotentiary of the United States, in Congress assembled, give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions:

ARTICLE I.

The Head-Men and Warriors of all the Cherokees shall restore all the prisoners, citizens of the United States, or subjects of their allies, to their entire liberty: They shall also restore all the Negroes, and all other property taken during the late war from the citizens, to such person, and at such time and place, as the Commissioners shall appoint. /A/

ARTICLE II.

The Commissioners of the United States in Congress assembled, shall restore all the prisoners taken from the Indians, during the late war, to the Head-Men and Warriors of the Cherokees, as early as is practicable. /B/

ARTICLE III.

The said Indians for themselves and their respective tribes and towns do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever. /C/

ARTICLE IV.

The boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is, and shall be the following, viz. Beginning at the mouth of Duck river, on the Tennessee; thence running north-east to the ridge dividing the waters running into Cumberland from those running into the Tennessee; thence eastwardly along the said ridge to a north-east line to be run, which shall strike the river Cumberland forty miles above Nashville; thence along the said line to the river; thence up the said river to the ford where the Kentucky road crosses the river; thence to Campbell's line, near Cumberland gap; thence to the mouth of Claud's creek on Holstein; thence to the Chimney-top mountain; thence to Camp-creek, near the mouth of Big Limestone, on Nolichuckey; thence a southerly course six miles to a mountain; thence south tothe North-Carolina line; thence to the South-Carolina Indian boundary, and along the same south-west over the top of the Oconee mountain till it shall strike Tugaloo river; thence a direct line to the top of the Currohee mountain; thence to the head of the south fork of Oconee river. /D/

ARTICLE V.

If any citizen of the United States, or other person not being an Indian, shall attempt to settle on any of the lands westward or southward of the said boundary which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him or not as they please: Provided nevertheless, That this article shall not extend to the people settled between the fork of French Broad and Holstein rivers, whose particular situation shall be transmitted to the United States in Congress assembled for their decision thereon, which the Indians agree to abide by. /E/

ARTICLE VI.

If any Indian or Indians, or person residing among them, or who shall take refuge in their nation, shall commit a robbery, or murder, or other capital crime, on any citizen of the United States, or person /F/ under their protection, the nation, or the tribe to which such offender or offenders may belong, shall be bound to deliver him or them up to be punished according to the ordinances of the United States; Provided, that the punishment shall not be greater than if the robbery or murder, or other capital crime had been committed by a citizen on a citizen.

ARTICLE VII.

If any citizen of the United States, or person under their protection, shall commit a robbery or murder, or other capital crime, on any Indian, such offender or offenders shall be punished in the same manner as if the murder or robbery, or other capital crime, had been committed on a citizen of the United States; and the punishment shall be in presence of some of the Cherokees, if any shall attend at the time and place, and that they may have an opportunity so to do, due notice of the time of such intended punishment shall be sent to some one of the tribes. /G/

ARTICLE VIII.

It is understood that the punishment of the innocent under the idea of retaliation, is unjust, and shall not be practiced on either side, except where there is a manifest violation of this treaty; and then it shall be preceded first by a demand of justice, and if refused, then by a declaration of hostilities. /H/

ARTICLE IX.

For the benefit and comfort of the Indians, and for the prevention injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper. /I/

ARTICLE X.

Until the pleasure of Congress be known, respecting the ninth article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees to trade with them, and they shall be protected in their persons and property, and kindly treated. /J/

ARTICLE XI.

The said Indians shall give notice to the citizens of the United States, of any designs which they may know or suspect to be formed in any neighboring tribe, or by any person whosoever, against the peace, trade or interest of the United States. /K/

ARTICLE XII.

That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to Congress. /L/

ARTICLE XIII.

The hatchet shall be forever buried, and the peace given by the United States, and friendship re-established between the said states on the one part, and all the Cherokees on the other, shall be universal; /M/ and the contracting parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established.

In witness of all and every thing herein determined, between the United States of America and all the Cherokees, we, their underwritten Commissioners, by virtue of our full powers, have signed this definitive treaty, and have caused our seals to be hereunto affixed.

Done at Hopewell, on the Keowee, this twenty-eighth of November, in the year of our Lord one thousand seven hundred and eighty-five.

Benjamin Hawkins, (L.S.)

And'w Pickens, (L.S.)

Jos. Martin, (L.S.)

Lach'n McIntosh, (L.S.)

Koatohee, or Corn Tassel of Toquo, his x mark, (L.S.)

Scholauetta, or Hanging Man of Chota, his x mark, (L.S.)

Tuskegatahu, or Long Fellow of Chistohoe, his x mark, (L.S.)

Ooskwha, or Abraham of Chilkowa, his x mark, (L.S.)

Kolakusta, or Prince of Noth, his x mark, (L.S.)

Newota, or the Gritzs of Chicamaga, his x mark, (L.S.)

Konatota, or the Rising Fawn of Highwassay, his x mark, (L.S.)

Tuckasee, or Young Terrapin of Allajoy, his x mark, (L.S.)

Toostaka, or the Waker of Oostanawa, his x mark, (L.S.)

Untoola, or Gun Rod of Seteco, his x mark, (L.S.)

Unsuokanail, Buffalo White Calf New Cussee, his x mark, (L.S.)

Kostayeak, or Sharp Fellow Wataga, his x mark, (L.S.)

Chonosta, of Cowe, his x mark, (L.S.)

Chescoonwho, Bird in Close of Tomotlug, his x mark, (L.S.)

Tuckasee, or Terrapin of Hightowa, his x mark, (L.S.)

Chesetoa, or the Rabbit of Tlacoa, his x mark, (L.S.)

Chesecotetona, or Yellow Bird of the Pine Log, his x mark, (L.S.)

Sketaloska, Second Man of Tillico, his x mark, (L.S.)

Chokasatahe, Chickasaw Killer Tasonta, his x mark, (L.S.)

Onanoota, of Koosoate, his x mark, (L.S.)

Ookoseta, or Sower Mush of Kooloque, his x mark, (L.S.)

Umatooetha, the Water Hunter Choikamawga, his x mark, (L.S.)

Wyuka, of Lookout Mountain, his x mark, (L.S.)

Tulco, or Tom of Chatuga, his x mark, (L.S.)

Will, of Akoha, his x mark, (L.S.)

Necatee, of Sawta, his x mark, (L.S.)

Amokontakona, Kutcloa, his x mark, (L.S.)

Kowetatahee, in Frog Town, his x mark, (L.S.)

Keukuck, Talcoa, his x mark, (L.S.)

Tulatiska, of Chaway, his x mark, (L.S.)

Wooaluka, the Waylayer, Chota, his x mark, (L.S.)

Tatliusta, or Porpoise of Tilassi, his x mark, (L.S.)

John, of Little Tallico, his x mark, (L.S.)

Skelelak, his x mark, (L.S.)

Akonoluchta, the Cabin, his x mark, (L.S.)

Cheanoka, of Kawetakac, his x mark, (L.S.)

Yellow Bird, his x mark, (L.S.)

Witness:

Wm. Blount,

Sam'l Taylor, Major.,

John Owen,

Jess. Walton,

Jno. Cowan, capt. comm'd't,

Thos. Gregg,

W. Hazzard.

James Madison,

Arthur Cooley,.

Sworn interpreters. A/ Indians to restore all prisoners, etc. B/ United States to restore all prisoners. C/ Cherokees acknowledge protection of United States. D/ Boundaries. E/ No citizen of United States to settle on Indian lands. F/ Indians to deliver up criminals. G/ Citizens of United States committing crimes against Indians to be punished. H/ Retaliation prohibited. I/ United States to regulate trade. J/ Special provision for trade. K/ Indians to give notice of designs against United States. L/ Indians may send deputy to Congress. M/ Peace and friendship perpetual.

Moving along...

Okay. So that case below, Johnson v. McIntosh - is the most important, critical case in Native American law... why? Because it set the precedent. The themes that Chief Justice Marshall set down back in that case are the themes that pervade all of Indian law today. The 3 main points?

1. Congress exercise plenary power (absolute, unlimited power) over Indian affairs.
2. Indians retain sovereign, but diminished, inherent power over their internal affairs and reservation territory.
3. The US possesses a trust responsibility (kind of like a guardianship) toward indian tribes.

I would read that case over and over because it explains the mindset and the foundation for everything that is done from that point on.

Justice Marshall avoided the 2 logical extremes here. What were his other choices? He could have found that "discovery" erased all indian title, and that the indians were shit out of luck, and had no rights whatsoever. But he didn't want to do that. That would have been ABSOLUTELY unfair to the indians, and he had some sense of fairness. He had to work with the system. The other decision he could have made was that indians had full power over their lands, and that was not an option, either, because it would have blown everything out of the water for the United States up to that point. The colonists would never have settled for that, and it would have made the Supreme Court useless since nobody would have obeyed them anyhow. And the Supreme Court, by the constitution, is the supreme law of the land - a THIRD of the power in the US. The other 2/3 are the exective branch (president) and legislative branch (congress and the house of representatives).

So Marshall struck the best compromise he COULD, giving Indians some rights, but diminished ones.

And while this was a loss in some ways for the indians, it also did protect them in other ways. Think about it. If the settlers could go in and buy/cheat/steal/extort/coerce the indians into selling their lands, they would have stolen a lot more land a lot earlier. This told everyone in the US that the Indians could only sell their land with permission from the Feds... so don't bother trying to gyp them, because you are just gonna lose the land. The US won't have your back.

So it wasn't all bad, considering the circumstances and the times.

Monday, April 16, 2007

The English/American control of NDNs.

Sorry for the delay, folks, I have been hopping with school, but I want to keep this blog going so I am going to add a post now...

Basically, once the English came to the new world, they followed these justifications that the Spaniards propelled. They felt that they were the "discoverers" of the new land, and that as such, they had a right to the new land, and to the people who inhabited it. I know, it makes no sense, how could they "discover" it if it was already inhabited?

At any rate, the English, and then the Americans later, were in a real bind. They wanted to get as much land as possible.. but in order to get the land, they had to recognize that the indians had some sort of title and right to the land that they could give away.. after all, if they didn't recognize that the indians had the right to sell or give away the land, what good was it to get their permission?

On the other hand, they didn't want to recognize them as an equal country, so they came up with a compromise. Indian Title. What this means is that the indians had the power to trade or sell, but they were subservient to the colonists... not quite an equal nation.

The first case ever in Indian law came about after the US had finally won the revolution and booted ENgland out. THey had stepped into England's shoes when it came to control over the indians, and they kept using their mindset.

I think it is ironic that the first case in indian law - EVER - is between two white parties. And because the case is so important, I am going to put the text of the case decision below. Basically, here's what happened.

One guy went into the indian territory, and bought a plot of land from the indians. The indians then signed a treaty with the US, ceding a huge chunk of land to the settlers. The land this guy bought was within that boundary. So then the US government sold that plot of land to another person...

Years later, both the guy who bought it from the indians, and the guy who bought it from the Government, sued each other so they could determine who had the title to the land. The Supreme Court ultimately decided that under the doctrine of discovery, the guy who bought it from the indians did NOT have good title, as only the Feds could buy or allow the indians to sell their land. On an alternate theory, they suggest that the first guy who bought from the indians ONLY BOUGHT THE TITLE the indians had... so therefore, since they did not own the land free and clear, but were kind of clipped by the US government control of the land, the guy who bought it only had the same title the indians had.. and when they treatied it away to the US, that land went, too.

It's a cool case to read, because it shows what the mindset was of the original supreme court. This is the first case Chief Justice Marshall really got into, regarding Indian rights, and a lot of what he says in this decision set the scene for the way the US would deal with indians forever after.

So here's the case. Again - this is the first case in Indian Law in the US (and Canada loosely follows our decisions in the beginning when they deal with Indians) and again, ironically, this first case in Indian law is between two white guys.. go figure.

Don't worry, I won't ALWAYS print most of the entire text of cases, but this one is SO enormously important, I wanted to make sure you all had a chance to read it if you wanted to...


Johnson v. McIntosh
Mr. Chief Justice MARSHALL delivered the opinion of the Court. The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the Courts of the United States?

The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered and ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.
The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, 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, and to use it according to their own discretion; but their rights to complete sovereignty, as independent 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 principle, that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey 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.

Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.

The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries "then unknown to all Christian people;" and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America lying on the seacoast,...which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies at their own request.
Under this patent, New-England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers.

Thus 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 the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will....
It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil, and the waters.
Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations, and treaties, which the different nations, claiming territory in America, have carried on, and held with each other.
Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the (USA), actually covered by the Indians, began as soon as their settlements approached each other, and were continued until finally settled in the year 1763, by the treaty of Paris.
These conflicting claims produced a long and bloody war, which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guarantied to Great Britain, all Nova Scotia, or Acadie, and Canada, with their dependencies; and it was agreed, that the boundaries between the territories of the two nations, in America, should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi.It has never been supposed that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquire the country; and any after attempt to purchase it from the Indians, would have been considered and treated as an invasion of the territories of France.

By the 20th article of the same treaty, Spain ceded Florida, with its dependencies, and all the country she claimed east or southeast of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians.

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the "propriety and territorial rights of the United States," whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively 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 power to extinguish that right, was vested in that government which might constitutionally exercise it.

The States, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that "all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation," "according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever."

The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.
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 circumstances of the people would allow them to exercise.

The power now possessed by the government 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 exercised uniformly over territory 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 recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.
(Big point, here)
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. 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 people. Where 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, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.

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.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation 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 govern them as a distinct people, was impossible, because they were as brave 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 be governed as a distinct society, or of remaining in their neighbourhood, 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 immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled 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 deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. 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 pretension 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 cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, 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 supported by reason, and certainly cannot be rejected by Courts of justice.
This opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.

Another view has been taken of this question, which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty.

As such a grant could not separate the Indian from his nation, nor give a title which our Courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a Court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity.They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States.
It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.
If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.
The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our Courts.
It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the seacoast 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 which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea.The charter contains an actual grant of the soil, as well as of the powers of government.

This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown.

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois.

Judgment affirmed, with costs