Houses and House-Life of the American Aborigines

by Lewis Henry Morgan

USAGES AND CUSTOMS WITH RESPECT TO LANDS AND TO FOOD

THE OWNERSHIP OF LANDS IN COMMON.

Among the Iroquois the tribal domain was held and owned by the tribe in common. Individual ownership, with the right to sell and convey in fee-simple to any other person, was entirely unknown among them. It required the experience and development of the two succeeding ethnical periods to bring mankind to such a knowledge of property in land as its individual ownership with the power of alienation in fee-simple implies. No person in Indian life could obtain the absolute title to land, since it was vested by custom in the tribe as one body; and they had no conception of what is implied by a legal title in severalty with power to sell and convey the fee. But he could reduce unoccupied land to possession by cultivation, and so long as he thus used it he had a possessory right to its enjoyment which would be recognized and respected by his tribe. Gardens planting-lots, apartments in a long-house, and, at a later day, orchards of fruit were thus held by persons and by families. Such possessory right was all that was needed for their full enjoyment and for the protection of their interest in them. A person might transfer or donate his rights to other persons of the same tribe, and they also passed by inherence, under established customs, to his gentile kin. This was substantially the Indian system in respect to the ownership of lands and apartments in houses among the Indian tribes within the areas of the United States and British America in the Lower Status of barbarism. In later times, when the State or National Government acquired Indian lands and made compensation therefor, payment for the lands went to the tribe, and for improvements to the individual who had the possessory right. At the Tonawanda Reservation of the Seneca-Iroquois, a portion of the lands are divided into separate farms, which are fenced and occupied in severalty, while the remainder are owned by the tribe in common. When a young man marries and has no land on which to subsist, the chiefs may allot him a portion of these reserved lands. The title to all these lands, occupied and unoccupied, remains in the tribe in common. Individuals may sell or rent their possessory rights to each other, or rent them to a white man. No white man can now acquire a title from an Indian to Indian lands in any part of the United States. A person could transfer his possessions to another, but apartments in a house must remain to his gentile kindred. In the time of James II the right to acquire lands was vested in the Crown exclusively as a royal prerogative, to which prerogative our State and National Governments succeeded.

The same usages prevail on the Tuscarora Reservation, near the Niagara River, where this Iroquois tribe owns in common about 8,000 acres of fine agricultural land in one body. A part of this reservation has long been parceled out to individuals in small farms, fenced, and cultivated by the possessors. The remainder is unparceled and under the control of the chiefs. The people are allowed to remove from the wood-land of the reserve the dead wood and litter but are not permitted to touch the standing timber. When a young man marries, if he has no land the chiefs allot him forty acres to cultivate for his subsistence; but, before giving him possession, the lot is first open to all the tribe to cut off the timber for fire-wood. Thus the double object is gained of supplying the people with fire-wood and of clearing the land for cultivation for the new family. These possessory rights pass by inheritance to the recognized heirs. A person may transfer or rent his possession to another person; he may rent to a white man, but in no case can he sell to a white man.

And here I may be allowed a brief digression, to notice a recent opinion of the late Secretary of the Interior, Hon. Carl Schurz, shared in to some extent by the National Government, in relation to the division of our Indian reservations into lots or tracts, and their conveyance in severalty to the Indians themselves, with power of alienation to white men after a short period, say twenty-five years. It is to be hoped that this policy will never be adopted by any National Administration, as it is fraught with nothing but mischief to the Indian tribes. The Indian is still, as he always has been, and will remain for many years to come, entirely incapable of meeting the white man, with safety to himself, in the field of trade and of resisting the arts and inducements which would be brought to bear upon him. He is incapable of steadily attaching that value to the ownership of land which its importance deserves, or of knowing how far the best interests of himself and family are involved in its continued possession. The result of individual Indian ownership, with power to sell, would unquestionably be, that in a very short time he would divest himself of every foot of land and fall into poverty. The case of the Shawnee tribe of Kansas affords a perfect illustration of this pernicious policy. The Shawnees were removed to Kansas under the Jackson policy, so called, and occupied a splendid reservation on the Kansas River, where they were told they were to make their home forever. But after a few years of undisturbed possession, our people, in the natural flow of population, reached Kansas, where they found the Shawnees in possession of the best part of what has since been the State of Kansas. Our people at once wanted these Indian lands, and they determined to root out the Shawnees in the interest of civilization and progress. They accomplished this result in the most speedy and scientific manner, using as their proposed lever this identical plan since adopted by Mr. Schurz. First, the government was induced to re-purchase a part of the reservation on the ground that they had more land than they needed for cultivation; and, secondly, the government induced the Indians to have the remainder divided up into farms and conveyed to heads of families in severalty, with power of alienation. In 1859, when this scheme was being worked out, I visited Kansas, and found the Shawnee's cultivating and improving their farms, some of which embraced a thousand acres, and owning them, too, like other farmers. When next in Kansas, ten years later, the work was done. There was not a Shawnee in Kansas, but American farmers were in possession of all these lands. It was this individual ownership with power to sell that had done the work.

In managing the affairs of our Indian tribes, we must apply a little common sense to their condition. In their brains they are in the same stage of growth and development with our remote forefathers when they learned to domesticate animals, and, came to rely upon a meat and milk subsistence. The next condition of advancement at which the Indian would naturally reach is the pastoral, the raising of flocks and herds of domestic animals. The Indian has taught himself to raise the horse in herds, and some of the tribes raise sheep and goats. A few of them raise cattle. If the government could assist them in this until they were started, they would soon become expert herdsmen; would make a proper use of the unoccupied prairie area in the interior of the continent as well as of the reservations, and would become prosperous and abundant in their resources.

Among the sedentary Village Indians of New Mexico, who were in the Middle Status of barbarism, the land system is much the same in principle, but with special usages adapted to a more advanced condition. At Taos, the pueblo lands are held under a Spanish grant of 1689, covering four Spanish square leagues. This grant was afterward confirmed, as I am informed by David J. Miller, esq., of the surveyor-general's office at Santa Fe, by letters patent of the United States. It is, of course, to the Taos Indians in common as a tribe, and without the power of alienation except among themselves. These lands have been allotted from time to time to individuals, and held in severalty for cultivation; but these allotments, so to call them, are verbal, and the rights of persons to their possession are settled and adjusted by the chiefs in case of disputes. Mr. Miller wrote me from Taos, under date of December 5, 1877, that "A land-owner cannot, under any circumstance, sell to any but a Pueblo Indian, and one of this (Taos) pueblo. If he should do so he would be banished the pueblo, and the sale be treated as void." There is an instance now in this pueblo of a San Juan Indian man married here, but he is not allowed to acquire land in the pueblo premises. His wife has lands which he cultivates. A piece of land belonging to a man may or may not be utilized by him, but it is recognized and treated as his in fee until he sell it or dies. If a lad grows up and marries, and his father or father-in-law has no land to give him, he may purchase in the pueblo, or the pueblo may assign him land, whereby the title in fee as private property remains in him until he sells or dies. When he dies it is divided equally among widow and children. If the children are small, his brother or other relatives cultivate the land for them until they can do it for themselves; but the right of property is in the children. When a piece of land is sold it is done in the presence of witnesses, if it is so desired. Oftener the sale and transfer are made by and between the parties themselves. No documents are used. This is so in all the pueblos. The rules and customs in the sale and delivery of rooms in a house and of personal property, such as animals, are the same. There is no preference, as to males or females, in the descent of property rights and titles. There is a corn-field at each pueblo, cultivated by all in common, and when grain is scarce the poor take from this store after it is housed. It is in the charge of, and at the disposal of, the cacique (called the governor). Land cannot be sold to an alien; but an Indian coming from another pueblo to live at this may acquire land to subsist upon, though such immigration is rare. It is not allowed at any of the pueblos that a white person acquire property therein. An Indian woman is not allowed to marry a Mexican and live at the pueblo. A piece of land held and recognized as belonging to a person is his property, whether he utilizes it or not, and he may sell or donate it absolutely at his will to persons within the community.

"At Jemes and Zia (other pueblos in New Mexico), when a woman dies her property goes into the control of her husband; if a widow, it descends to her children; if she has no children, it goes to her brothers and sisters equally; and if none survive her, then to her nearest relatives; if she has no relatives, then to such friends as attend her in her last illness. It never reverts to the pueblo, which as a corporate community owns no land."

What Mr. Miller refers to as property rights and titles, and ownership in fee of land, is sufficiently explained by the possessory right found among the Northern tribes. The limitations upon its alienation to an Indian from another pueblo or to a white man, not to lay any stress upon the absence of written conveyances of titles made possible by Spanish and American intercourse, show quite plainly that their ideas respecting the ownership of the ultimate title to land, with power to alienate in fee, were entirely below this conception of property in land. The more important ends of individual ownership were obtained through the possessory right, while the ultimate title remained in the tribe for the protection of all. That the pueblo now owns no land, as Mr. Miller states, must be understood to mean that all the lands of the original grant have been parcelled out. The further statement of Mr. Miller, that if a father dies his land is divided between his widow and children, and that if a mother dies, leaving no husband, her land is divided equally between her sons and daughters, is important, because it shows an inheritance by the children from both father and mother, a total departure from the principles of gentile inheritance. While visiting the Taos pueblo in the summer of 1878 I was unable to find among them the gentile organization, and from lack of sufficient time could not inquire into their rules of descent and inheritance.

My friend, Mr. Ad. F. Bandelier, now recognized as our most eminent scholar in Spanish American history, has recently investigated the subject of the tenure of lands among the ancient Mexicans with great thoroughness of research. The results are contained in an essay published in the Eleventh Annual Report of the Peabody Museum of Archaeology and Ethnology, p. 385 (Cambridge, 1878). It gives me great pleasure to incorporate verbatim in this chapter, and with his permission, so much of this essay as relates to the kinds or classes of land recognized among them, the manner in which they were held, and his general conclusions.