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."[[1]]
"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 defining, 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 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 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 Indians."[[2]]
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.