U.S. Supreme Court
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543
543 (1823)
Johnson & Graham's Lessee v. McIntosh
21 U.S. (8 Wheat.) 543
ERROR TO THE DISTRICT
COURT OF ILLINOIS
Syllabus
A title to lands under grants to private individuals made by
Indian tribes or nations northwest of the River Ohio in 1773 and
1775 cannot be recognized in the courts of the United States.
Discovery the original foundation of titles to land on the
American continent as between the different European nations by
whom conquests and settlements were made here.
Recognition of the same principle in the wars, negotiations, and
treaties between the different European powers.
Adoption of the same principle by the United States.
The exclusive right of the British government to the lands
occupied by the Indians has passed to that of the United
States.
Foundation and limitation of the right of conquest.
Application of the principle of the right of conquest to the
case of the Indian savages. Nature of the Indian title, as
subordinate to the absolute ultimate title of the government.
Effect of the proclamation of 1763.
Titles in New England under Indian grants.
This was an action of ejectment for lands in the State and
District of Illinois, claimed by the plaintiffs under a purchase
and conveyance from the Piankeshaw Indians and by the defendant
under a grant from the United States. It came up on a case stated
upon which there was a judgment below for the defendant. The case
stated set out the following facts:
1st. That on 23 May, 1609, James I, King of England, by his
letters patent of that date, under the great seal of England, did
erect, form, and establish Robert, Earl of Salisbury, and others,
his associates, in the letters patent named and their successors
into a body corporate and politic by the name and style of "The
Treasurer and Company of Adventurers and Planters of the City of
London for the first Colony in Virginia," with perpetual succession
and power to make, have, and use a common seal, and did give,
grant, and confirm unto this company, and their successors,
Page 21 U. S. 544
under certain reservations and limitations in the letters patent
expressed,
"All the lands, countries, and territories situate, lying, and
being in that part of North America called Virginia, from the point
of land called Cape or Point Comfort all along the seacoast to the
northward two hundred miles, and from the said Cape or Point
Comfort all along the seacoast to the southward two hundred miles,
and all that space and circuit of land lying from the seacoast of
the precinct aforesaid up into the land throughout from the sea,
west and northwest, and also all the islands lying within one
hundred miles along the coast of both seas of the precinct
aforesaid, with all the soil, grounds, rights, privileges, and
appurtenances to these territories belonging and in the letters
patent particularly enumerated,"
and did grant to this corporation and their successors various
powers of government in the letters patent particularly
expressed.
2d. That the place called in these letters patent Cape or Point
Comfort is the place now called and known by the name of Old Point
Comfort, on the Chesapeake Bay and Hampton Roads, and that
immediately after the granting of the letters patent, the
corporation proceeded under and by virtue of them to take
possession of parts of the territory which they describe and to
form settlements, plant a colony, and exercise the powers of
government therein, which colony was called and known by the name
of the Colony of Virginia.
3d. That at the time of granting these letters patent and of the
discovery of the continent of
Page 21 U. S. 545
North America by the Europeans, and during the whole
intermediate time, the whole of the territory in the letters patent
described, except a small district on James River, where a
settlement of Europeans had previously been made, was held,
occupied, and possessed in full sovereignty by various independent
tribes or nations of Indians, who were the sovereigns of their
respective portions of the territory and the absolute owners and
proprietors of the soil and who neither acknowledged nor owed any
allegiance or obedience to any European sovereign or state
whatever, and that in making settlements within this territory and
in all the other parts of North America where settlements were made
under the authority of the English government or by its subjects,
the right of soil was previously obtained by purchase or conquest
from the particular Indian tribe or nation by which the soil was
claimed and held, or the consent of such tribe or nation was
secured.
4th. That in the year 1624, this corporation was dissolved by
due course of law and all its powers, together with its rights of
soil and jurisdiction under the letters patent in question were
revested in the Crown of England, whereupon the colony became a
royal government with the same territorial limits and extent which
had been established by the letters patent, and so continued until
it became a free and independent state, except so far as its limits
and extent were altered and curtailed by the Treaty of February 10,
1763, between Great Britain and France and by the letters patent
granted by the King of England
Page 21 U. S. 546
for establishing the Colonies of Carolina, Maryland, and
Pennsylvania.
5th. That sometime previous to the year 1756, the French
government, laying a claim to the country west of the Alleghany or
Appalachian Mountains on the Ohio and Mississippi Rivers and their
branches, took possession of certain parts of it with the consent
of the several tribes or nations of Indians possessing and owning
them, and with the like consent established several military posts
and settlements therein, particularly at Kaskaskias, on the River
Kaskaskias, and at Vincennes, on the River Wabash, within the
limits of the Colony of Virginia, as described and established in
and by the letters patent of May 23, 1609, and that the government
of Great Britain, after complaining of these establishments as
encroachments and remonstrating against them, at length, in the
year 1756, took up arms to resist and repel them, which produced a
war between those two nations wherein the Indian tribes inhabiting
and holding the countries northwest of the Ohio and on the
Mississippi above the mouth of the Ohio were the allies of France,
and the Indians known by the name of the Six Nations or the
Iroquois and their tributaries and allies were the allies of Great
Britain, and that on 10 February, 1763, this war was terminated by
a definitive treaty of peace between Great Britain and France and
their allies by which it was stipulated and agreed that the River
Mississippi, from its source to the Iberville, should forever after
form the boundary between the dominions of
Page 21 U. S. 547
Great Britain and those of France in that part of North America
and between their respective allies there.
6th. That the government of Virginia, at and before the
commencement of this war and at all times after it became a royal
government, claimed and exercised jurisdiction, with the knowledge
and assent of the government of Great Britain, in and over the
country northwest of the River Ohio and east of the Mississippi as
being included within the bounds and limits described and
established for that colony, by the letters patent of May 23, 1609,
and that in the year 1749, a grant of six hundred thousand acres of
land within the country northwest of the Ohio and as part of
Virginia was made by the government of Great Britain to some of its
subjects by the name and style of the Ohio Company.
7th. That at and before the commencement of the war in 1756 and
during its whole continuance and at the time of the Treaty of
February 10, 1763, the Indian tribes or nations inhabiting the
country north and northwest of the Ohio and east of the Mississippi
as far east as the river falling into the Ohio called the Great
Miami were called and known by the name of the Western Confederacy
of Indians, and were the allies of France in the war, but not her
subjects, never having been in any manner conquered by her, and
held the country in absolute sovereignty as independent nations,
both as to the right of jurisdiction and sovereignty and the right
of soil, except a few military posts and a small territory around
each,
Page 21 U. S. 548
which they had ceded to France, and she held under them, and
among which were the aforesaid posts of Kaskaskias and Vincennes,
and that these Indians, after the treaty, became the allies of
Great Britain, living under her protection as they had before lived
under that of France, but were free and independent, owing no
allegiance to any foreign power whatever and holding their lands in
absolute property, the territories of the respective tribes being
separated from each other and distinguished by certain natural
marks and boundaries to the Indians well known, and each tribe
claiming and exercising separate and absolute ownership in and over
its own territory, both as to the right of sovereignty and
jurisdiction and the right of soil.
8th. That among the tribes of Indians thus holding and
inhabiting the territory north and northwest of the Ohio, east of
the Mississippi, and west of the Great Miami, within the limits of
Virginia, as described in the letters patent of May 23, 1609, were
certain independent tribes or nations called the Illinois or
Kaskaskias and the Piankeshaw or Wabash Indians, the first of which
consisted of three several tribes united into one and called the
Kaskasias, the Pewarias, and the Cahoquias; that the Illinois
owned, held, and inhabited, as their absolute and separate
property, a large tract of country within the last mentioned limits
and situated on the Mississippi, Illinois, and Kaskaskias Rivers
and on the Ohio below the mouth of the Wabash, and the Piankeshaws
another large tract of country within the same
Page 21 U. S. 549
limits, and as their absolute and separate property, on the
Wabash and Ohio Rivers, and that these Indians remained in the sole
and absolute ownership and possession of the country in question
until the sales made by them in the manner herein after set
forth.
9th. That on the termination of the war between Great Britain
and France, the Illinois Indians, by the name of the Kaskaskias
tribes of Indians, as fully representing all the Illinois tribes
then remaining, made a treaty of peace with Great Britain and a
treaty of peace, limits, and amity, under her mediation, with the
Six Nations, or Iroquois, and their allies, then known and
distinguished by the name of the Northern Confederacy of Indians,
the Illinois being a part of the confederacy then known and
distinguished by the name of the Southern Confederacy, and
sometimes by that of the Western Confederacy.
10th. That on 7 October, 1763, the King of Great Britain made
and published a proclamation for the better regulation of the
countries ceded to Great Britain by that treaty, which proclamation
is referred to and made part of the case.
11th. That from time immemorial and always up to the present
time, all the Indian tribes or nations of North America, and
especially the Illinois and Piankeshaws and other tribes holding,
possessing, and inhabiting the said countries north and northeast
of the Ohio east of the Mississippi and west of the Great Miami
held their respective lands and territories each in common, the
individuals
Page 21 U. S. 550
of each tribe or nation holding the lands and territories of
such tribe in common with each other, and there being among them no
separate property in the soil, and that their sole method of
selling, granting, and conveying their lands, whether to
governments or individuals, always has been from time immemorial
and now is for certain chiefs of the tribe selling to represent the
whole tribe in every part of the transaction, to make the contract,
and execute the deed, on behalf of the whole tribe, to receive for
it the consideration, whether in money or commodities, or both, and
finally to divide such consideration among the individuals of the
tribe, and that the authority of the chiefs so acting for the whole
tribe is attested by the presence and assent of the individuals
composing the tribe, or some of them, and by the receipt by the
individuals composing the tribe of their respective shares of the
price, and in no other manner.
12th. That on 5 July, 1773, certain chiefs of the Illinois
Indians, then jointly representing, acting for, and being duly
authorized by that tribe in the manner explained above, did by
their deed poll, duly executed and delivered and bearing date on
that day, at the post of Kaskaskias, then being a British military
post, and at a public council there held by them for and on behalf
of the said Illinois nation of Indians with William Murray, of the
Illinois country, merchant, acting for himself and for Moses Franks
and Jacob Franks, of London, in Great Britain, David Franks, John
Inglis, Bernard Gratz, Michael
Page 21 U. S. 551
Gratz, Alexander Ross, David Sproat, and James Milligan, all of
Philadelphia, in the p\Province of Pennsylvania; Moses Franks,
Andrew Hamilton, William Hamilton, and Edmund Milne of the same
place; Joseph Simons otherwise called Joseph Simon and Levi Andrew
Levi of the Town of Lancaster in Pennsylvania; Thomas Minshall of
York County in the same province; Robert Callender and William
Thompson, of Cumberland County in the same province; John Campbell
of Pittsburgh in the same province; and George Castles and James
Ramsay of the Illinois country, and for a good and valuable
consideration in the said deed stated grant, bargain, sell, alien,
lease, enfeoff, and confirm to the said William Murray, Moses
Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz,
Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew
Hamilton, William Hamilton, Edmund Milne Joseph Simons, otherwise
called Joseph Simon Levi Andrew Levi, Thomas Minshall, Robert
Callender, William Thompson, John Campbell, George Castles, and
James Ramsay, their heirs and assigns forever, in severalty, or to
George the Third, then King of Great Britain and Ireland, his heirs
and successors, for the use, benefit, and behoof of the grantees,
their heirs and assigns, in severalty, by whichever of those
tenures they might most legally hold, all those two several tracts
or parcels of land situated, lying, and being within the limits of
Virginia on the east of the Mississippi, northwest of the Ohio, and
west of the Great Miami, and thus butted
Page 21 U. S. 552
and bounded:
Beginning for one of the said tracts on the east side of the
Mississippi at the mouth of the Heron Creek, called by the French
the River of Mary, being about a league below the mouth of the
Kaskaskias River, and running thence a northward of east course in
a direct line back to the Hilly Plains, about eight leagues more or
less; thence the same course in a direct line to the Crab Tree
Plains, about seventeen leagues more or less; thence the same
course in a direct line to a remarkable place known by the name of
the Big Buffalo Hoofs, about seventeen leagues more or less; thence
the same course, in a direct line to the Salt Lick Creek, about
seven leagues more or less; then crossing the Salt Lick Creek,
about one league below the ancient Shawanese town in an easterly or
a little to the north of east course in a direct line to the River
Ohio, about four leagues more or less; then down the Ohio by its
several courses until it empties into the Mississippi, about
thirty-five leagues more or less; and then up the Mississippi, by
its several courses, to the place of beginning, about thirty-three
leagues more or less; and beginning for the other tract on the
Mississippi at a point directly opposite to the mouth of the
Missouri and running up the Mississippi by its several courses to
the mouth of the Illinois, about six leagues more or less; and
thence up the Illinois, by its several courses, to Chicagou or
Garlic Creek, about ninety leagues, more or less; thence nearly a
northerly course, in a direct line, to a certain remarkable place,
being the ground on which a
Page 21 U. S. 553
battle was fought about forty or fifty years before that time
between the Pewaria and Renard Indians, about fifty leagues more or
less; thence by the same course in a direct line to two remarkable
hills close together in the middle of a large prairie or plain,
about fourteen leagues more or less; thence a north of east course,
in a direct line, to a remarkable spring known by the Indians by
the name of "Foggy Spring," about fourteen leagues more or less;
thence the same course in a direct line to a great mountain, to the
northwest of the White Buffalo Plain, about fifteen leagues more or
less; and thence nearly a southwest course to the place of
beginning, about forty leagues more or less:
To have and to hold the said two tracts of land, with all and
singular their appurtenances, to the grantees, their heirs and
assigns, forever in severalty or to the King, his heirs and
successors, to and for the use, benefit, or behoof of the grantees,
their heirs and assigns, forever in severalty, as will more fully
appear by the said deed poll, duly executed under the hands and
seals of the grantors and duly recorded at Kaskaskias on 2
September, 1773, in the office of Vicerault Lemerance, a notary
public, duly appointed and authorized. This deed, with the several
certificates annexed to or endorsed on it, was set out at length in
the case.
13th. That the consideration in this deed expressed, was of the
value of $24,000 current money of the United States and upwards,
and was paid and delivered, at the time of the execution of the
deed, by William Murray, one
Page 21 U. S. 554
of the grantees, in behalf of himself and the other grantees, to
the Illinois Indians, who freely accepted it and divided it among
themselves; that the conferences in which the sale of these lands
was agreed on and made and in which it was agreed that the deed
should be executed were publicly held for the space of a month at
the post of Kaskaskias, and were attended by many individuals of
all the tribes of Illinois Indians, besides the chiefs, named as
grantors in the deed; that the whole transaction was open, public,
and fair, and the deed fully explained to the grantors and other
Indians by the sworn interpreters of the government and fully
understood by the grantors and other Indians before it was
executed; that the several witnesses to the deed and the grantees
named in it were such persons and of such quality and stations,
respectively, as they are described to be in the deed, the
attestation, and the other endorsements on it; that the grantees
did duly authorize William Murray to act for and represent them in
the purchase of the lands and the acceptance of the deed, and that
the two tracts or parcels of land which it describes and purports
to grant were then part of the lands held, possessed, and inhabited
by the Illinois Indians from time immemorial in the manner already
stated.
14th. That all the persons named as grantees in this deed were,
at the time of its execution and long before, subjects of the Crown
of Great Britain and residents of the several places named in the
deed as their places of residence, and that
Page 21 U. S. 555
they entered into the land under and by virtue of the deed and
became seized as the law requires.
15th. That on 18 October, 1775, Tabac and certain other Indians,
all being chiefs of the Piankeshaws and jointly representing,
acting for, and duly authorized by that nation in the manner stated
above, did, by their deed poll, duly executed and bearing date on
the day last mentioned at the post of Vincennes, otherwise called
post St. Vincent, then being a British military post, and at a
public council there held by them for and on behalf of the
Piankeshaw Indians, with Louis Viviat, of the Illinois country,
acting for himself and for the Right Honorable John, Earl of
Dunmore, then Governor of Virginia, the Honorable John Murray, son
of the said Earl, Moses Franks and Jacob Franks, of London, in
Great Britain, Thomas Johnson, Jr., and John Davidson, both of
Annapolis, in Maryland, William Russel, Matthew Ridley, Robert
Christie, Sr., and Robert Christie, Jr., of Baltimore Town, in the
same province, Peter Compbell, of Piscataway in the same province,
William Geddes, of Newtown Chester in the same province, collector
of his Majesty's customs, David Franks and Moses Franks, both of
Philadelphia in Pennsylvania, William Murray and Daniel Murray, of
the Illinois country, Nicholas St. Martin and Joseph Page, of the
same place, Francis Perthuis, late of Quebec, in Canada, but then
of post St. Vincent, and for good and valuable consideration, in
the deed poll mentioned and enumerated, grant, bargain, sell,
alien, enfeoff, release, ratify, and
Page 21 U. S. 556
confirm to the said Louis Viviat and the other persons last
mentioned, their heirs and assigns, equally to be divided, or to
George III, then King of Great Britain and Ireland, his heirs and
successors, for the use, benefit, and behoof of all the above
mentioned grantees, their heirs and assigns, in severalty, by
whichever of those tenures they might most legally hold, all those
two several tracts of land in the deed particularly described
situate, lying,
brk:
and being northwest of the Ohio, east of the Mississippi, and
west of the Great Miami, within the limits of Virginia and on both
sides of the Ouabache, otherwise called the Wabash, which two
tracts of land are contained respectively within the following
metes and bounds, courses and distances, that is to say, beginning
for one of the said tracts at the mouth of a rivulet called Riviere
du Chat, or Cat River, where it empties itself into the Ouabache or
Wabash, by its several courses, to a place called Point Coupee,
about twelve leagues above post St. Vincent, being forty leagues,
or thereabouts, in length, on the said river Ouabache, from the
place of beginning, with forty leagues in width or breadth on the
east side, and thirty leagues in breadth or width on the west side
of that river, to be continued along from the place of beginning to
Point Coupee. And beginning for the other tract at the mouth of
White River where it empties into the Ouabache, about twelve
leagues below post St. Vincent, and running thence down the
Ouabache by its several courses until it empties into the Ohio,
being from White River to the Ohio, about fifty-three leagues in
length, more or less, with forty
Page 21 U. S. 557
leagues in width or breadth on the east side and thirty in width
or breadth on the west side of the Ouabache, to be continued along
from the White River to the Ohio, with all the rights, liberties,
privileges, hereditaments, and appurtenances to the said tract
belonging, to have and to hold to the grantees, their heirs and
assigns, forever in severalty or to the King, his heirs and
successors, for the use, benefit, and behoof of the grantees, their
heirs and assigns, as will more fully appear by the deed itself,
duly executed under the hands and seals of the grantors, and duly
recorded at Kaskaskias, on 5 December, 1775, in the office of Louis
Bomer, a notary public, duly appointed and authorized. This deed,
with the several certificates annexed to or endorsed on it, was set
out at length.
16th. That the consideration in this deed expressed was of the
value of $31,000 current money of the United States and upwards,
and was paid and delivered at the time of the execution of the deed
by the grantee, Lewis Viviat, in behalf of himself and the other
grantees, to the Piankeshaw Indians, who freely accepted it and
divided it among themselves; that the conferences in which the sale
of these two tracts of land was agreed on and made, and in which it
was agreed that the deed should be executed were publicly held for
the space of a month at the post of Vincennes or post St. Vincent,
and were attended by many individuals of the Piankeshaw nation of
Indians besides the chiefs named as grantors in the deed; that the
whole
Page 21 U. S. 558
transaction was open, public, and fair, and the deed fully
explained to the grantors and other Indians by skillful
interpreters, and fully understood by them before it was executed;
that it was executed in the presence of the several witnesses by
whom it purports to have been attested, and was attested by them;
that the grantees were all subjects of the Crown of Great Britain,
and were of such quality, station, and residence, respectively, as
they are described in the deed to be; that the grantees did duly
authorize Lewis Viviat to act for and represent them in the
purchase of these two tracts of land and in the acceptance of the
deed; that these tracts of land were then part of the lands held,
possessed, and inhabited by the Piankeshaw Indians from time
immemorial, as is stated above; and that the several grantees under
this deed entered into the land which it purports to grant and
became seized as the law requires.
17th. That on 6 May, 1776, the Colony of Virginia threw off its
dependence on the Crown and government of Great Britain and
declared itself an independent state and government with the limits
prescribed and established by the letters patent of May 23, 1609,
as curtailed and restricted by the letters patent establishing the
Colonies of Pennsylvania, Maryland, and Carolina and by the Treaty
of February 10, 1763, between Great Britain and France, which
limits, so curtailed and restricted, the State of Virginia, by its
Constitution and form of government, declared should be and remain
the limits of the state and should bound its western and
northwestern extent.
Page 21 U. S. 559
18th. That on 5 October, 1778, the General Assembly of Virginia,
having taken by arms the posts of Kaskaskias and Vincennes, or St.
Vincent, from the British forces, by whom they were then held, and
driven those forces from the country northwest of the Ohio, east of
the Mississippi, and west of the Great Miami, did, by an act of
assembly of that date, entitled "An act for establishing the County
of Illinois and for the more effectual protection and defense
thereof," erect that country, with certain other portions of
territory within the limits of the state and northwest of the Ohio
into a county, by the name of the County of Illinois.
19th. That on 29 December, 1783, the State of Virginia, by an
act of assembly of that date, authorized their delegates in the
Congress of the United States, or such of them, to the number of
three at least, as should be assembled in Congress on behalf of the
state and by proper deeds or instruments in writing under their
hands and seals, to convey, transfer, assign, and make over to the
United States, in Congress assembled, for the benefit of the said
states, all right, title, and claim, as well of soil as
jurisdiction, which Virginia had to the territory or tract of
country within her limits, as defined and prescribed by the letters
patent of May 23, 1609, and lying to the northwest of the Ohio;
subject to certain limitations and conditions in the act prescribed
and specified, and that on 1 March, 1784, Thomas Jefferson, Samuel
Hardy, Arthur Lee, and James Monroe, then being four of the
delegates
Page 21 U. S. 560
of Virginia to the Congress of the United States, did, by their
deed poll, under their hands and seals, in pursuance and execution
of the authority to them given by this act of assembly, convey,
transfer, assign, and make over to the United States, in Congress
assembled, for the benefit of the said states, all right, title,
and claim, as well of soil as jurisdiction which that state had to
the territory northwest of the Ohio, with the reservations,
limitations, and conditions in the act of assembly prescribed,
which cession the United States accepted.
20th. That on 20 July, 1818, the United States, by their
officers duly authorized for that purpose did sell, grant, and
convey to the defendant in this action, William McIntosh, all those
several tracts or parcels of land, containing 11,560 acres, and
butted, bounded, and described, as will fully appear in and by the
patent for the said lands, duly executed, which was set out at
length.
21st. That the lands described and granted in and by this patent
are situated within the State of Illinois and are contained within
the lines of the last or second of the two tracts described and
purporting to be granted and conveyed to Louis Viviat and others by
the deed of October 18, 1775, and that William McIntosh, the
defendant, entered upon these lands under and by virtue of his
patent and became possessed thereof before the institution of this
suit.
22d. That Thomas Johnson, one of the grantees
Page 21 U. S. 561
in and under the deed of October 18, 1775, departed this life on
or about 1 October, 1819, seized of all his undivided part or share
of and in the two several tracts of land described and purporting
to be granted and conveyed to him and others by that deed, having
first duly made and published his last will and testament in
writing, attested by three credible witnesses, which he left in
full force and by which he devised all his undivided share and part
of those two tracts of land to his son, Joshua Johnson and his
heirs, and his grandson, Thomas J. Graham, and his heirs, the
lessors of the plaintiff in this action, as tenants in common.
23d. That Joshua Johnson and Thomas J. Graham, the devisees,
entered into the two tracts of land last above mentioned under and
by virtue of the will, and became thereof seized as the law
requires. That Thomas Johnson, the grantee and devisor, during his
whole life and at the time of his death, was an inhabitant and
citizen of the State of Maryland; that Joshua Johnson and Thomas J.
Graham, the lessors of the plaintiff, now are and always have been
citizens of the same state; that the defendant, William McIntosh,
now is and at and before the time of bringing this action was a
citizen of the State of Illinois, and that the matter in dispute in
this action is of the value of $2,000 current money of the United
States and upwards.
24th. And that neither William Murray nor any other of the
grantees under the deed of July 5, 1773, nor Louis Viviat nor any
other of the
Page 21 U. S. 562
grantees under the deed of October 8, 1775, nor any person for
them or any of them ever obtained or had the actual possession
under and by virtue of those deeds or either of them of any part of
the lands in them or either of them described and purporting to be
granted, but were prevented by the war of the American Revolution,
which soon after commenced, and by the disputes and troubles which
preceded it, from obtaining such possession, and that since the
termination of the war and before it, they have repeatedly and at
various times from the year 1781 till the year 1816 petitioned the
Congress of the United States to acknowledge and confirm their
title to those lands under the purchases and deeds in question, but
without success.
Judgment being given for the defendant on the case stated, the
plaintiffs brought this writ of error.
Page 21 U. S. 571
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
Page 21 U. S. 572
Indian tribes constituting the Illinois and the Piankeshaw
nations, and the question is whether this title can be recognized
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.
As the right of society to prescribe those rules by which
property may be acquired and preserved is not and cannot be drawn
into question, as the title to lands especially is and must be
admitted to depend entirely on the law of the nation in which they
lie, it will be necessary in pursuing this inquiry to examine not
singly those principles of abstract justice which the Creator of
all things has impressed on the mind of his creature man and which
are admitted to regulate in a great degree the rights of civilized
nations, whose perfect independence is acknowledged, but those
principles also which our own government has adopted in the
particular case and given us as the rule for our decision.
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 an
Page 21 U. S. 573
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.
Page 21 U. S. 574
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 in on
the rights given by discovery. Portugal sustained her claim to the
Brazils by the same title.
France also founded her title to the vast territories she
claimed in America on discovery. However
Page 21 U. S. 575
conciliatory her conduct to the natives may have been, she still
asserted her right of dominion over a great extent of country not
actually settled by Frenchmen and her exclusive right to acquire
and dispose of the soil which remained in the occupation of
Indians. Her monarch claimed all Canada and Acadie as colonies of
France at a time when the French population was very inconsiderable
and the Indians occupied almost the whole country. He also claimed
Louisiana, comprehending the immense territories watered by the
Mississippi and the rivers which empty into it, by the title of
discovery. The letters patent granted to the Sieur Demonts in 1603,
constitute him Lieutenant General, and the representative of the
King in Acadie, which is described as stretching from the 40th to
the 46th degree of north latitude, with authority to extend the
power of the French over that country and its inhabitants, to give
laws to the people, to treat with the natives and enforce the
observance of treaties, and to parcel out and give title to lands
according to his own judgment.
The states of Holland also made acquisitions in America and
sustained their right on the common principle adopted by all
Europe. They allege, as we are told by Smith in his History of New
York, that Henry Hudson, who sailed, as they say, under the orders
of their East India Company, discovered the country from the
Delaware to the Hudson, up which he sailed to the 43d degree of
north latitude, and this country they claimed under the title
acquired by this voyage.
Page 21 U. S. 576
Their first object was commercial, as appears by a grant made to
a company of merchants in 1614, but in 1621 the States General
made, as we are told by Mr. Smith, a grant of the country to the
West India Company by the name of New Netherlands.
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
Page 21 U. S. 577
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.
The same principle continued to be recognized. The charter
granted to Sir Humphrey Gilbert in 1578 authorizes him to discover
and take possession of such remote, heathen, and barbarous lands as
were not actually possessed by any Christian prince or people. This
charter was afterwards renewed to Sir Walter Raleigh in nearly the
same terms.
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 between the 34th and 45th degrees of north latitude and
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. The first or southern
colony was directed to settle between the 34th and 41st degrees of
north latitude, and the second or northern colony between the 38th
and 45th degrees.
In 1609, after some expensive and not very successful attempts
at settlement had been made, a new and more enlarged charter was
given by the Crown to the first colony, in which the King granted
to the "Treasurer and Company of Adventurers of the City of London
for the first colony in Virginia," in absolute property, the lands
extending along the seacoast four hundred miles, and
Page 21 U. S. 578
into the land throughout from sea to sea. This charter, which is
a part of the special verdict in this cause, was annulled, so far
as respected the rights of the company, by the judgment of the
Court of King's Bench on a writ of
quo warranto, but the
whole effect allowed to this judgment was to revest in the Crown
the powers of government and the title to the lands within its
limits.
At the solicitation of those who held under the grant to the
second or northern colony, a new and more enlarged charter was
granted to the Duke of Lenox and others in 1620, who were
denominated the Plymouth Company, conveying to them in absolute
property all the lands between the 40th and 48th degrees of north
latitude.
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.
Great part of New England was granted by this company, which at
length divided their remaining lands among themselves, and in 1635
surrendered their charter to the Crown. A patent was granted to
Gorges for Maine, which was allotted to him in the division of
property.
All the grants made by the Plymouth Company, so far as we can
learn, have been respected. In pursuance of the same principle, the
King, in 1664, granted to the Duke of York the country of New
England as far south as the Delaware
Page 21 U. S. 579
Bay. His Royal Highness transferred New Jersey to Lord Berkeley
and Sir George Carteret.
In 1663, the Crown granted to Lord Clarendon and others the
country lying between the 36th degree of north latitude and the
River St. Mathes, and in 1666 the proprietors obtained from the
Crown a new charter granting to them that province in the King's
dominions in North America which lies from 36 degrees 30 minutes
north latitude to the 29th degree, and from the Atlantic ocean to
the South sea.
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. The grants made out of the two original
colonies, after the resumption of their charters by the Crown, are
examples of this. The governments of New England, New York, New
Jersey, Pennsylvania, Maryland, and a part of Carolina were thus
created. In all of them, the soil, at the time the grants were
made, was occupied by the Indians. Yet almost every title within
those governments is dependent on these grants. In some instances,
the soil was conveyed by the Crown unaccompanied by the powers of
government, as in the case of the northern neck of Virginia. It has
never
Page 21 U. S. 580
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. Some
of them purport to convey the soil alone, and in those cases in
which the powers of government as well as the soil are conveyed to
individuals, the Crown has always acknowledged itself to be bound
by the grant. Though the power to dismember regal governments was
asserted and exercised, the power to dismember proprietary
governments was not claimed, and in some instances, even after the
powers of government were revested in the Crown, the title of the
proprietors to the soil was respected.
Charles II was extremely anxious to acquire the property of
Maine, but the grantees sold it to Massachusetts, and he did not
venture to contest the right of that colony to the soil. The
Carolinas were originally proprietary governments. In 1721, a
revolution was effected by the people, who shook off their
obedience to the proprietors and declared their dependence
immediately on the Crown. The King, however, purchased the title of
those who were disposed to sell. One of them, Lord Carteret,
surrendered his interest in the government but retained his title
to the soil. That
Page 21 U. S. 581
title was respected till the revolution, when it was forfeited
by the laws of war.
Further proofs of the extent to which this principle has been
recognized 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.
The contests between the cabinets of Versailles and Madrid
respecting the territory on the northern coast of the Gulf of
Mexico were fierce and bloody, and continued until the
establishment of a Bourbon on the throne of Spain produced such
amicable dispositions in the two Crowns as to suspend or terminate
them.
Between France and Great Britain, whose discoveries as well as
settlements were nearly contemporaneous, contests for the country
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.
Each nation had granted and partially settled the country,
denominated by the French Acadie, and by the English Nova Scotia.
By the 12th article of the Treaty of Utrecht, made in 1703, his
most Christian Majesty ceded to the Queen of Great Britain "all
Nova Scotia or Acadie, with its ancient boundaries." A great part
of the ceded territory was in the possession of the Indians, and
the extent of the cession could not be adjusted by the
commissioners to whom it was to be referred.
The Treaty of Aix la Chapelle, which was made
Page 21 U. S. 582
on the principle of the
status ante bellum, did not
remove this subject of controversy. Commissioners for its
adjustment were appointed whose very able and elaborate, though
unsuccessful, arguments in favor of the title of their respective
sovereigns show how entirely each relied on the title given by
discovery to lands remaining in the possession of Indians.
After the termination of this fruitless discussion, the subject
was transferred to Europe and taken up by the cabinets of
Versailles and London. This controversy embraced not only the
boundaries of New England, Nova Scotia, and that part of Canada
which adjoined those colonies, but embraced our whole western
country also. France contended not only that the St. Lawrence was
to be considered as the center of Canada, but that the Ohio was
within that colony. She founded this claim on discovery and on
having used that river for the transportation of troops in a war
with some southern Indians.
This river was comprehended in the chartered limits of Virginia,
but though the right of England to a reasonable extent of country
in virtue of her discovery of the seacoast and of the settlements
she made on it, was not to be questioned, her claim of all the
lands to the Pacific Ocean because she had discovered the country
washed by the Atlantic, might, without derogating from the
principle recognized by all, be deemed extravagant. It interfered,
too, with the claims of France founded on the same principle. She
therefore sought to strengthen her original title to
Page 21 U. S. 583
the lands in controversy by insisting that it had been
acknowledged by France in the 15th article of the Treaty of
Utrecht. The dispute respecting the construction of that article
has no tendency to impair the principle, that discovery gave a
title to lands still remaining in the possession of the Indians.
Whichever title prevailed, it was still a title to lands occupied
by the Indians, whose right of occupancy neither controverted and
neither had then extinguished.
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 guaranteed 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 acquired the country,
and any after attempt to purchase it from the Indians would have
been considered
Page 21 U. S. 584
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.
By a secret treaty which was executed about the same time,
France ceded Louisiana to Spain, and Spain has since retroceded the
same country to France. At the time both of its cession and
retrocession, it was occupied chiefly by the Indians.
Thus all the nations of Europe who have acquired territory on
this continent have asserted in themselves and have recognized 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
Page 21 U. S. 585
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.
Virginia, particularly, within whose chartered limits the land
in controversy lay, passed an act in the year 1779 declaring
her
"exclusive right of preemption from the Indians of all the lands
within the limits of her own chartered territory, and that no
person or persons whatsoever have or ever had a right to purchase
any lands within the same from any Indian nation except only
persons duly authorized to make such purchase, formerly for the use
and benefit of the colony and lately for the Commonwealth."
The act then proceeds to annul all deeds made by Indians to
individuals for the private use of the purchasers.
Without ascribing to this act the power of annulling vested
rights or admitting it to countervail the testimony furnished by
the marginal note opposite to the title of the law forbidding
purchases from the Indians in the revisals of the Virginia statutes
stating that law to be repealed, it may safely be considered as an
unequivocal affirmance on the part of Virginia of the broad
principle which had always been maintained that the exclusive right
to purchase from the Indians resided in the government.
In pursuance of the same idea, Virginia proceeded at the same
session to open her
Page 21 U. S. 586
land office for the sale of that country which now constitutes
Kentucky, a country every acre of which was then claimed and
possessed by Indians, who maintained their title with as much
persevering courage as was ever manifested by any people.
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.
Page 21 U. S. 587
After these states became independent, a controversy subsisted
between them and Spain respecting boundary. By the treaty of 1795,
this controversy was adjusted and Spain ceded to the United States
the territory in question. This territory, though claimed by both
nations, was chiefly in the actual occupation of Indians.
The magnificent purchase of Louisiana was the purchase from
France of a country almost entirely occupied by numerous tribes of
Indians who are in fact independent. Yet any attempt of others to
intrude into that country would be considered as an aggression
which would justify war.
Our late acquisitions from Spain are of the same character, and
the negotiations which preceded those acquisitions recognize and
elucidate the principle which has been received as the foundation
of all European title in America.
The United States, then, has 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
Page 21 U. S. 588
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
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 that right. This is incompatible with an
absolute and complete title in the Indians.
We will not enter into the controversy whether agriculturists,
merchants, and manufacturers have a right on abstract principles to
expel hunters from the territory they possess or to contract their
limits. Conquest gives a title which the courts of the conqueror
cannot deny, whatever the private and speculative opinions of
individuals may be, respecting the original justice of the claim
which has been successfully asserted. The British government, which
was then our government and whose rights have passed to the United
States, asserted title to all the lands occupied by Indians within
the chartered limits of the British colonies. It asserted also a
limited sovereignty over them and the exclusive right of
extinguishing the title which occupancy gave to them. These claims
have been maintained and established as far west as the River
Mississippi by the sword. The title
Page 21 U. S. 589
to a vast portion of the lands we now hold originates in them.
It is not for the courts of this country to question the validity
of this title or to sustain one which is incompatible with it.
Although we do not mean to engage in the defense 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.
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 connections,
and united by force to strangers.
When the conquest is complete and the conquered inhabitants can
be blended with the conquerors
Page 21 U. S. 590
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 neighborhood, 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
neighborhood of agriculturists became unfit for them. The game
fled
Page 21 U. S. 591
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 parceled
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
Page 21 U. S. 592
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 question is not entirely new in this Court. The case of
Fletcher v. Peck grew out of a sale made by the State of
Georgia of a large tract of country within the limits of that
state, the grant of which was afterwards resumed. The action was
brought by a subpurchaser on the contract of sale, and one of the
covenants in the deed was that the State of Georgia was, at the
time of sale, seized in fee of the premises. The real question
presented by the issue was whether the seizin in fee was in the
State of Georgia or in the United States. After stating that this
controversy between the several states and the United States had
been compromised, the court thought in necessary to notice the
Indian title, which, although entitled to the respect of all courts
until it should be legitimately extinguished, was declared not to
be such as to be absolutely repugnant to a seizin in fee on the
part of the state.
This opinion conforms precisely to the principle which has been
supposed to be recognized 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 seizin in fee than a lease for years, and might as
effectually bar an ejectment.
Another view has been taken of this question
Page 21 U. S. 593
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
Page 21 U. S. 594
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.
The proclamation issued by the King of Great Britain in 1763 has
been considered, and we think with reason, as constituting an
additional objection to the title of the plaintiffs.
By that proclamation, the Crown reserved under its own dominion
and protection, for the use of the Indians, "all the land and
territories lying to the westward of the sources of the rivers
which fall into the sea from the west and northwest," and strictly
forbade all British subjects from making any purchases or
settlements whatever or taking possession of the reserved
lands.
It has been contended that in this proclamation, the King
transcended his constitutional powers, and the case of
Campbell
v. Hall, reported by Cowper, is relied on to support this
position.
Page 21 U. S. 595
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 connection 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 parceled 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.
According to the theory of the British Constitution, all vacant
lands are vested in the Crown, as representing the nation, and the
exclusive power to grant them is admitted to reside in the Crown as
a branch of the royal prerogative. It has been already shown that
this principle was as fully recognized in America as in the Island
of Great Britain. All the lands we hold were originally granted by
the Crown, and the establishment of a regal government has never
been considered as
Page 21 U. S. 596
impairing its right to grant lands within the chartered limits
of such colony. In addition to the proof of this principle,
furnished by the immense grants already mentioned of lands lying
within the chartered limits of Virginia, the continuing right of
the Crown to grant lands lying within that colony was always
admitted. A title might be obtained either by making an entry with
the surveyor of a county in pursuance of law or by an order of the
governor in council, who was the deputy of the King, or by an
immediate grant from the Crown. In Virginia, therefore, as well as
elsewhere in the British dominions, the complete title of the Crown
to vacant lands was acknowledged.
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.
According to the theory of the British Constitution, the royal
prerogative is very extensive so far as respects the political
relations between Great Britain and foreign nations. The peculiar
situation of the Indians, necessarily considered in some respects
as a dependent and in some respects as a distinct people occupying
a country claimed by Great Britain, and yet too powerful and brave
not to be dreaded as formidable enemies, required that means should
be adopted for
Page 21 U. S. 597
the preservation of peace, and that their friendship should be
secured by quieting their alarms for their property. This was to be
effected by restraining the encroachments of the whites, and the
power to do this was never, we believe, denied by the colonies to
the Crown.
In the case of
Campbell v. Hall, that part of the
proclamation was determined to be illegal, which imposed a tax on a
conquered province, after a government had been bestowed upon it.
The correctness of this decision cannot be questioned, but its
application to the case at bar cannot be admitted. Since the
expulsion of the Stuart family, the power of imposing taxes by
proclamation has never been claimed as a branch of regal
prerogative, but the powers of granting, or refusing to grant,
vacant lands, and of restraining encroachments on the Indians have
always been asserted and admitted.
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.
In the argument of this cause, the counsel for the plaintiffs
have relied very much on the opinions expressed by men holding
offices of trust, and on various proceedings in America to sustain
titles to land derived from the Indians.
The collection of claims to lands lying in the western country
made in the 1st volume of the Laws of the United States has been
referred to, but we find nothing in that collection to support the
argument. Most of the titles were derived
Page 21 U. S. 598
from persons professing to act under the authority of the
government existing at the time, and the two grants under which the
plaintiffs claim are supposed by the person under whose inspection
the collection was made to be void, because forbidden by the royal
proclamation of 1763. It is not unworthy of remark that the usual
mode adopted by the Indians for granting lands to individuals has
been to reserve them in a treaty or to grant them under the
sanction of the commissioners with whom the treaty was negotiated.
The practice in such case to grant to the Crown for the use of the
individual is some evidence of a general understanding that the
validity even of such a grant depended on its receiving the royal
sanction.
The controversy between the Colony of Connecticut and the
Mohegan Indians depended on the nature and extent of a grant made
by those Indians to the colony; on the nature and extent of the
reservations made by the Indians, in their several deeds and
treaties, which were alleged to be recognized by the legitimate
authority; and on the violation by the colony of rights thus
reserved and secured. We do not perceive in that case any assertion
of the principle that individuals might obtain a complete and valid
title from the Indians.
It has been stated that in the memorial transmitted from the
Cabinet of London to that of Versailles, during the controversy
between the two nations respecting boundary which took place in
1755, the Indian right to the soil is recognized.
Page 21 U. S. 599
But this recognition was made with reference to their character
as Indians and for the purpose of showing that they were fixed to a
particular territory. It was made for the purpose of sustaining the
claim of His Britannic Majesty to dominion over them.
The opinion of the Attorney and Solicitor General, Pratt and
Yorke, have been adduced to prove that in the opinion of those
great law officers, the Indian grant could convey a title to the
soil without a patent emanating from the Crown. The opinion of
those persons would certainly be of great authority on such a
question, and we were not a little surprised when it was read, at
the doctrine it seemed to advance. An opinion so contrary to the
whole practice of the Crown and to the uniform opinions given on
all other occasions by its great law officers ought to be very
explicit and accompanied by the circumstances under which it was
given, and to which it was applied before we can be assured that it
is properly understood. In a pamphlet written for the purpose of
asserting the Indian title, styled "Plain Facts," the same opinion
is quoted, and is said to relate to purchases made in the East
Indies. It is, of course, entirely inapplicable to purchases made
in America. Chalmers, in whose collection this opinion is found,
does not say to whom it applies, but there is reason to believe
that the author of Plain Facts is, in this respect, correct. The
opinion commences thus:
"In respect to such places as have been or shall be acquired by
treaty or grant from any of the Indian princes or governments,
Page 21 U. S. 600
your Majesty's letters patent are not necessary."
The words "princes or governments" are usually applied to the
East Indians, but not to those of North America. We speak of their
sachems, their warriors, their chiefmen, their nations or tribes,
not of their "princes or governments." The question on which the
opinion was given, too, and to which it relates, was whether the
King's subjects carry with them the common law wherever they may
form settlements. The opinion is given with a view to this point,
and its object must be kept in mind while construing its
expressions.
Much reliance is also placed on the fact, that many tracts are
now held in the United States under the Indian title, the validity
of which is not questioned.
Before the importance attached to this fact is conceded, the
circumstances under which such grants were obtained, and such
titles are supported, ought to be considered. These lands lie
chiefly in the eastern states. It is known that the Plymouth
Company made many extensive grants which, from their ignorance of
the country, interfered with each other. It is also known that
Mason to whom New Hampshire, and Gorges, to whom Maine was granted,
found great difficulty in managing such unwieldy property. The
country was settled by emigrants, some from Europe, but chiefly
from Massachusetts, who took possession of lands they found
unoccupied, and secured themselves in that possession by the best
means in their power. The disturbances in
Page 21 U. S. 601
England, and the civil war and revolution which followed those
disturbances, prevented any interference on the part of the mother
country, and the proprietors were unable to maintain their title.
In the meantime, Massachusetts claimed the country and governed it.
As her claim was adversary to that of the proprietors, she
encouraged the settlement of persons made under her authority, and
encouraged likewise their securing themselves in possession, by
purchasing the acquiescence and forbearance of the Indians. After
the restoration of Charles II, Gorges and Mason, when they
attempted to establish their title, found themselves opposed by men
who held under Massachusetts and under the Indians. The title of
the proprietors was resisted, and though in some cases compromises
were made and in some, the opinion of a court was given ultimately
in their favor, the juries found uniformly against them. They
became wearied with the struggle, and sold their property. The
titles held under the Indians were sanctioned by length of
possession, but there is no case, so far as we are informed, of a
judicial decision in their favor.
Much reliance has also been placed on a recital contained in the
charter of Rhode Island, and on a letter addressed to the governors
of the neighboring colonies, by the King's command, in which some
expressions are inserted, indicating the royal approbation of
titles acquired from the Indians.
The charter to Rhode Island recites
"That the said John Clark and others had transplanted
Page 21 U. S. 602
themselves into the midst of the Indian nations, and were seized
and possessed, by purchase and consent of the said natives, to
their full content, of such lands,"
&c. And the letter recites, that
"Thomas Chifflinch and others, having, in the right of Major
Asperton, a just propriety in the Narraghanset Country, in New
England, by grants from the native princes of that country, and
being desirous to improve it into an English colony, . . . are yet
daily disturbed."
The impression this language might make, if viewed apart from
the circumstances under which it was employed, will be effaced,
when considered in connection with those circumstances.
In the year 1635, the Plymouth Company surrendered their charter
to the Crown. About the same time, the religious dissentions of
Massachusetts expelled from that colony several societies of
individuals, one of which settled in Rhode Island, on lands
purchased from the Indians. They were not within the chartered
limits of Massachusetts, and the English government was too much
occupied at home to bestow its attention on this subject. There
existed no authority to arrest their settlement of the country. If
they obtained the Indian title, there were none to assert the title
of the Crown. Under these circumstances, the settlement became
considerable. Individuals acquired separate property in lands which
they cultivated and improved; a government was established among
themselves, and no power existed in America which could rightfully
interfere with it.
On the restoration of Charles II, this small society
Page 21 U. S. 603
hastened to acknowledge his authority, and to solicit his
confirmation of their title to the soil, and to jurisdiction over
the country. Their solicitations were successful, and a charter was
granted to them, containing the recital which has been
mentioned.
It is obvious that this transaction can amount to no
acknowledgment that the Indian grant could convey a title paramount
to that of the Crown, or could in itself constitute a complete
title. On the contrary, the charter of the Crown was considered as
indispensable to its completion.
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 country granted is said to be "our island called
Rhode Island," and the charter contains an actual grant of the soil
as well as of the powers of government.
Page 21 U. S. 604
The letter was written a few months before the charter was
issued, apparently at the request of the agents of the intended
colony, for the sole purpose of preventing the trespasses of
neighbors, who were disposed to claim some authority over them. The
King, being willing himself to ratify and confirm their title was,
of course, inclined to quiet them in their possession.
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.
The acts of the several colonial assemblies prohibiting
purchases from the Indians have also been relied on as proving
that, independent of such prohibitions, Indian deeds would be
valid. But we think this fact, at most, equivocal. While the
existence of such purchases would justify their prohibition, even
by colonies which considered Indian deeds as previously invalid,
the fact that such acts have been generally passed, is strong
evidence of the general opinion, that such purchases are opposed by
the soundest principles of wisdom and national policy.
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
Page 21 U. S. 605
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.
