The recognition of these principles seems to have been complete, as is evidenced by the history of America from its discovery to the present day. France, England, Portugal, and Holland recognized them unqualifiedly, and even Catholic Spain did not predicate her title solely upon the grant of the Holy See.
No one of these countries was more zealous in her maintenance of these doctrines than England. In 1496 King Henry VII commissioned John and Sebastian Cabot to proceed upon a voyage of discovery and to take possession of such countries as they might find which were then unknown to Christian people, in the name of the King of England. The results of their voyages in the next and succeeding years laid the foundation for the claim of England to the territory of that portion of North America which subsequently formed the nucleus of our present possessions.
The policy of the United States since the adoption of the Federal Constitution has in this particular followed the precedent established by the mother country. In the treaty of peace between Great Britain and the United States following the Revolutionary war, the former not only relinquished the right of government, but renounced and yielded to the United States all pretensions and claims whatsoever to all the country south and west of the great northern rivers and lakes as far as the Mississippi.
In the period between the conclusion of this treaty and the year 1789 it was undoubtedly the opinion of Congress that the relinquishment of territory thus made by Great Britain, without so much as a saving clause guaranteeing the Indian right of occupancy, carried with it an absolute and unqualified fee-simple title unembarrassed by any intermediate estate or tenancy. In the treaties held with the Indians during this period—notably those of Fort Stanwix, with the Six Nations, in 1784, and Fort Finney, with the Shawnees, in 1786—they had been required to acknowledge the United States as the sole and absolute sovereign of all the territory ceded by Great Britain.
This claim, though unintelligible to the savages in its legal aspects, was practically understood by them to be fatal to their independence and territorial rights. Although in a certain degree the border tribes had been defeated in their conflicts with the United States, they still retained sufficient strength and resources to render them formidable antagonists, especially when the numbers and disposition of their adjoining and more remote allies were taken into consideration. The breadth, and boldness of the territorial claims thus asserted by the United States were not long in producing their natural effect. The active and sagacious Brant succeeded in reviving his favorite project of an alliance between the Six Nations and the northwestern tribes. He experienced but little trouble in convening a formidable assemblage of Indians at Huron Village, opposite Detroit, where they held council together from November 28 to December 18, 1786.
These councils resulted in the presentation of an address to Congress, wherein they expressed an earnest desire for peace, but firmly insisted that all treaties carried on with the United States should be with the general voice of the whole confederacy in the most open manner; that the United States should prevent surveyors and others from crossing the Ohio River; and they proposed a general treaty early in the spring of 1787. This address purported to represent the Five Nations, Hurons, Ottawas, Twichtwees, Shawanese, Chippewas, Cherokees, Delawares, Pottawatomies, and the Wabash Confederates, and was signed with the totem of each tribe.
Such a remonstrance, considering the weakness of the government under the old Articles of Confederation, and the exhausted condition immediately following the Revolution, produced a profound sensation in Congress. That body passed an act providing for the negotiation of a treaty or treaties, and making an appropriation for the purchase and extinguishment of the Indian claim to certain lands. These preparations and appropriations resulted in two treaties made at Fort Harmar, January 9, 1789, one with the Six Nations, and the other with the Wiandot, Delaware, Ottawa, Chippewa, Pottawatima, and Sac Nations, wherein the Indian title of occupancy is clearly acknowledged. That the government so understood and recognized this principle as entering into the text of those treaties is evidenced by a communication bearing date June 15, 1789, from General Knox, then Secretary of War, to President Washington, and which was communicated by the latter on the same day to Congress, in which it is declared that—
The Indians, being the prior occupants, possess the right of soil. It cannot be taken from them, unless by their free consent, or by right of conquest in case of a just war. To dispossess them on any other principle would be a gross violation of the fundamental laws of nature, and of that distributive justice which is the glory of a nation.
The principle thus outlined and approved by the administration of President Washington, although more than once questioned by interested parties, has almost, if not quite, invariably been sustained by the legal tribunals of the country, at least by the courts of final resort; and the decisions of the Supreme Court of the United States bear consistent testimony to its legal soundness. Several times has this question in different forms appeared before the latter tribunal for adjudication, and in each case has the Indian right been recognized and protected. In 1823, 1831, and 1832, Chief Justice Marshall successively delivered the opinion of the court in important cases involving the Indian status and rights. In the second of these cases (The Cherokee Nation vs. The State of Georgia) it was maintained that the Cherokees were a state and had uniformly been treated as such since the settlement of the country; that the numerous treaties made with them by the United States recognized them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community; that the condition of the Indians in their relations to the United States is perhaps unlike that of any other two peoples on the globe; that, in general, nations not owing a common allegiance are foreign to each other, but that the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else; that the Indians were acknowledged to have an unquestionable right to the lands they occupied until that right should be extinguished by a voluntary cession to our government; that it might well be doubted whether those tribes which reside within the acknowledged boundaries of the United States could with strict accuracy be denominated foreign nations, but that they might more correctly perhaps be denominated domestic dependent nations; that they occupied a territory to which we asserted a title independent of their will, but which only took effect in point of possession when their right of possession ceased.
The Government of the United States having thus been committed in all of its departments to the recognition of the principle of the Indian right of possession, it becomes not only a subject of interest to the student of history, but of practical value to the official records of the government, that a carefully compiled work should exhibit the boundaries of the several tracts of country which have been acquired from time to time, within the present limits of the United States, by cession or relinquishment from the various Indian tribes, either through the medium of friendly negotiations and just compensation, or as the result of military conquest. Such a work, if accurate, would form the basis of any complete history of the Indian tribes in their relations to, and influence upon the growth and diffusion of our population and civilization. Such a contribution to the historical collections of the country should comprise: