"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."[[3]]
In the sadly famous case of the removal of the Cherokee tribe from Georgia, it is recorded as the opinion of our Supreme Court that "the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy until that right shall be extinguished by a voluntary cession to the Government." *** "The Indian nations have always been considered as distinct independent political communities, retaining their original natural rights as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves as well as on the Indians. The very term 'nation,' so generally applied to them, means 'a people distinct from others.' The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to other nations of the earth. They are applied to all in the same sense."[[4]]
In another decision of the Supreme Court we find still greater emphasis put upon the Indian right of occupancy, by stating it as a right, the observance of which was stipulated for in treaties between the United States and other nations.
"When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes before the acquisition of the territory by Spain and Great Britain remained in force over all the ceded territory, as the law which regulated the relations with all the Indians who were parties to them, and were binding on the United States by the obligation they had assumed by the Louisiana treaty as a supreme law of the land.
"The treaties with Spain and England before the acquisition of Florida by the United States, which guaranteed to the Seminole Indians their lands, according to the right of property with which they possessed them, were adopted by the United States, who thus became the protectors of all the rights they (the Indians) had previously enjoyed, or could of right enjoy, under Great Britain or Spain, as individuals or nations, by any treaty to which the United States thus became parties in 1803. ***
"The Indian right to the lands as property was not merely of possession; that of alienation was concomitant; both were equally secured, protected, and guaranteed by Great Britain and Spain, subject only to ratification and confirmation by the license, charter, or deed from the government representing the king." ***
The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of the title of the Crown to the purchaser, and no instance is known of refusal of permission to sell, or of the rejection of an Indian sale.[[5]]
"The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the States of the Union after the Revolution, were made for lands within the Indian hunting-grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolutionary War by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources which sustained the war, not only by those States but by other States. The ultimate fee, encumbered with the right of occupancy, was in the Crown previous to the Revolution, and in the States afterward, and subject to grant. This right of occupancy was protected by the political power, and respected by the courts until extinguished." *** "So the Supreme Court and the State courts have uniformly held."[[6]]
President Adams, in his Message of 1828, thus describes the policy of the United States toward the Indians at that time:
"At the establishment of the Federal Government the principle was adopted of considering them as foreign and independent powers, and also as proprietors of lands. As independent powers, we negotiated with them by treaties; as proprietors, we purchased of them all the land which we could prevail on them to sell; as brethren of the human race, rude and ignorant, we endeavored to bring them to the knowledge of religion and letters."