C. C. Royce - Cessions of Land by Indian Tribes to the United States: Illustrated by Those in the State of Indiana
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C. C. Royce >> Cessions of Land by Indian Tribes to the United States: Illustrated by Those in the State of Indiana
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Smithsonian Institution--Bureau of Ethnology.
J. W. Powell, Director.
CESSIONS OF LAND BY INDIAN TRIBES TO THE UNITED STATES:
ILLUSTRATED BY THOSE IN THE STATE OF INDIANA
by
C. C. ROYCE.
First Annual Report of the Bureau of Ethnology to the Secretary of
the Smithsonian Institution, 1879-80, Government Printing Office,
Washington, 1881, pages 247-262
[Illustration: Map of the State of Indiana]
CHARACTER OF THE INDIAN TITLE.
The social and political relations that have existed and still continue
between the Government of the United States and the several Indian
tribes occupying territory within its geographical limits are, in many
respects, peculiar.
The unprecedentedly rapid increase and expansion of the white population
of the country, bringing into action corresponding necessities for the
acquisition and subjection of additional territory, have maintained a
constant straggle between civilization and barbarism. Involved as a
factor in this social conflict, was the legal title to the land occupied
by Indians. The questions raised were whether in law or equity the
Indians were vested with any stronger title than that of mere tenants at
will, subject to be dispossessed at the pleasure or convenience of their
more civilized white neighbors, and, if so, what was the nature and
extent of such stronger title?
These questions have been discussed and adjudicated from time to time by
the executive and judicial authorities of civilized nations ever since
the discovery of America.
The discovery of this continent, with its supposed marvelous wealth of
precious metals and commercial woods, gave fresh impetus to the ambition
and cupidity of European monarchs.
Spain, France, Holland, and England each sought to rival the other in
the magnitude and value of their discoveries. As the primary object of
each of these European potentates was the same, and it was likely to
lead to much conflict of jurisdiction, the necessity of some general
rule became apparent, whereby their respective claims might be
acknowledged and adjudicated without resort to the arbitrament of arms.
Out of this necessity grew the rule which became a part of the
recognized law of nations, and which gave the preference of title to the
monarch whose vessels should be the first to discover, rather than to
the one who should first enter upon the possession of new lands. The
exclusion under this rule of all other claimants gave to the discovering
nation the sole right of acquiring the soil from the natives and of
planting settlements thereon. This was a right asserted by all the
commercial nations of Europe, and fully recognized in their dealings
with each other; and the assertion, of such a right necessarily carried
with it a modified denial of the Indian title to the land discovered. It
recognized in them nothing but a possessory title, involving a right of
occupancy and enjoyment until such time as the European sovereign should
purchase it from them. The ultimate fee was held to reside in such
sovereign, whereby the natives were inhibited from alienating in any
manner their right of possession to any but that sovereign or his
subjects.
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:
1st. A series of maps of the several States and Territories, on a scale
ranging from ten to sixteen miles to an inch, grouped in atlas form,
upon which should be delineated in colors the boundary lines of the
various tracts of country ceded to the United States from time to time
by the different Indian tribes.
2d. An accompanying historical text, not only reciting the substance of
the material provisions of the several treaties, but giving a history of
the causes leading to them,, as exhibited in contemporaneous official
correspondence and other trustworthy data.
3d. A chronologic list of treaties with the various Indian tribes,
exhibiting the names of tribes, the date, place where, and person by
whom negotiated.
4th. An alphabetic list of all rivers, lakes, mountains, villages, and
other objects or places mentioned in such treaties, together with their
location and the names by which they are at present known.
5th. An alphabetic list of the principal rivers, lakes, mountains, and
other topographic features in the United States, showing not only their
present names but also the various names by which they have from time to
time been known since the discovery of America, giving in each case the
date and the authority therefor.
INDIAN BOUNDARIES.
The most difficult and laborious feature of the work is that involved
under the first of these five subdivisions. The ordinary reader in
following the treaty provisions, in which the boundaries of the various
cessions are so specifically and minutely laid down, would anticipate
but little difficulty in tracing those boundaries upon the modern map.
In this he would find himself sadly at fault. In nearly all of the
treaties concluded half a century or more ago, wherein cessions of land
were made, occur the names of boundary points which are not to be found
on any modern map, and which have never been known to people of the
present generation living in the vicinity.
In many of the older treaties this is the case with a large proportion
of the boundary points mentioned. The identification and exact location
of these points thus becomes at once a source of much laborious
research. Not unfrequently weeks and even months of time have been
consumed, thousands of old maps and many volumes of books examined, and
a voluminous correspondence conducted with local historical societies or
old settlers, in the effort to ascertain the location of a single
boundary point.
To illustrate this difficulty, the case of "Hawkins' line" may be cited,
a boundary line mentioned in the cession by the Cherokees by treaty of
October 2, 1798. An examination of more than four thousand old and
modern maps and the scanning of more than fifty volumes failed to show
its location or to give even the slightest clue to it. A somewhat
extended correspondence with numerous persons in Tennessee, including
the veteran annalist, Ramsey, also failed to secure the desired
information. It was not until months of time had been consumed and
probable sources of information had been almost completely exhausted
that, through the persevering inquiries of Hon. John M. Lea, of
Nashville, Tenn., in conjunction with the present writer's own
investigations, the line was satisfactorily identified as being the
boundary line mentioned in the Cherokee treaty of July 2, 1791, and
described as extending from the North Carolina boundary "north to a
point from which a line is to be extended to the river Clinch that shall
pass the Holston at the ridge which divides the waters running into
Little River from those running into the Tennessee."
It gained the title of "Hawkins' line" from the fact that a man named
Hawkins surveyed it.
That this is not an isolated case, and as an illustration of the number
and frequency of changes in local geographical names in this country, it
may be remarked that in twenty treaties concluded by the Federal
Government with the various Indian tribes prior to the year 1800, in an
aggregate of one hundred and twenty objects and places therein recited,
seventy-three of them are wholly ignored in the latest edition of
Colton's Atlas; and this proportion will hold with but little diminution
in the treaties negotiated during the twenty years immediately
succeeding that date.
Another and most perplexing question has been the adjustment of the
conflicting claims of different tribes of Indians to the same territory.
In the earlier days of the Federal period, when the entire country west
of the Alleghanies was occupied or controlled by numerous contiguous
tribes, whose methods of subsistence involved more or less of nomadic
habit, and who possessed large tracts of country then of no greater
value than merely to supply the immediate physical wants of the hunter
and fisherman, it was not essential to such tribes that a careful line
of demarkation should define the limits of their respective territorial
claims and jurisdiction. When, however, by reason of treaty negotiations
with the United States, with a view to the sale to the latter of a
specific area of territory within clearly-defined boundaries, it became
essential for the tribe with whom the treaty was being negotiated to
make assertion and exhibit satisfactory proof of its possessory title to
the country it proposed to sell, much controversy often arose with other
adjoining tribes, who claimed all or a portion of the proposed cession.
These conflicting claims were sometimes based upon ancient and
immemorial occupancy, sometimes upon early or more recent conquest, and
sometimes upon a sort of wholesale squatter-sovereignty title whereby a
whole tribe, in the course of a sudden and perhaps forced migration,
would settle down upon an unoccupied portion of the territory of some
less numerous tribe, and by sheer intimidation maintain such occupancy.
In its various purchases from the Indians, the Government of the United
States, in seeking to quiet these conflicting territorial claims, have
not unfrequently been compelled to accept from two, and even three,
different tribes separate relinquishments of their respective rights,
titles, and claims to the same section of country. Under such
circumstances it can readily be seen, what difficulties would attend a
clear exhibition upon a single map of these various coincident and
overlapping strips of territory. The State of Illinois affords an
excellent illustration. The conflicting cessions in that State may be
briefly enumerated as follows:
1. The cession at the mouth of Chicago River, by treaty of August 3,
1795, was also included within the limits of a subsequent cession made
by treaty of August 24, 1816, with the Ottawas, Chippewas, and
Pottawatomies.
2. The cession at the mouth of the Illinois River, by treaty of 1795,
was overlapped by the Kaskaskia cession of 1803, again by the Sac and
Fox cession of 1804, and a third time by the Kickapoo cession of 1819.
3. The cession at "Old Peoria Fort, or village," by treaty of 1795, was
also overlapped in like manner with the last preceding one.
4. The cessions of 1795 at Fort Massac and at Great Salt Spring are
within the subsequent cession by the Kaskaskias of 1803.
5. The cession of August 13, 1803, by the Kaskaskias, as ratified and
enlarged by the Kaskaskias and Peorias September 25, 1818, overlaps the
several sessions by previous treaty of 1795 at the mouth of the Illinois
River, at Great Salt Spring, at Fort Massac, and at Old Peoria Fort, and
is in turn overlapped by subsequent cessions of July 30, and August 30,
1819, by the Kickapoos and by the Pottawatomie cession of October 20,
1832.
6. The Sac and Fox cession of November 3, 1804 (partly in Missouri and
Wisconsin) overlaps the cessions of 1795 at the mouth of the Illinois
River and at Old Peoria Fort. It is overlapped by two Chippewa, Ottawa,
and Pottawatomie cessions of July 29, 1829, the Winnebago cessions of
August 1, 1829, and September 1, 1832, and by the Chippewa, Ottawa, and
Pottawatomie cession of September 26, 1833.
7. The Piankeshaw cession of December 30, 1805, is overlapped by the
Kickapoo cession of 1819.
8. The Ottawa, Chippewa, and Pottawatomie cession of August 24, 1816,
overlaps the cession of 1795 around Chicago.
9. The cession of October 2, 1818, by the Pottawatomies (partly in
Indiana), is overlapped by the subsequent cession of 1819, by the
Kickapoos.
10. The combined cessions of July 30, and August 30, 1819, by the
Kickapoos (partly in Indiana), overlap the cessions of 1795 at the mouth
of the Illinois River and at Old Fort Peoria; also the Kaskaskia and
Peoria cessions of 1803 and 1818, the Piankeshaw cession of 1805, and
the Pottawatomie cession of October 2, 1818, and are overlapped by the
subsequent Pottawatomie cession of October 20, 1832.
11. Two cessions were made by the Chippewas, Ottawas and Pottawatomies
by treaty of July 29, 1829 (partly located in Wisconsin), one of which
is entirely and the other largely within the limits of the country
previously ceded by the Sacs and Foxes, November 3, 1804.
12. The Winnebago cession of August 1, 1829 (which is partly in
Wisconsin), is also wholly within the limits of the aforesaid Sac and
Fox cession of 1804.
13. Cession by the Winnebagoes September 15, 1832, which is mostly in
the State of Wisconsin and which was also within the limits of the Sac
and Fox cession of 1804.
14. Pottawatomie cession of October 20, 1832, which overlaps the
Kaskaskia and Peoria cession of August 13, 1803, as confirmed and
enlarged September 25, 1818, and also the Kickapoo cession by treaties
of July 30 and August 30, 1819.
From this it will be seen that almost the entire country comprising the
present State of Illinois was the subject of controversy in the matter
of original ownership, and that the United States, in order fully to
extinguish the Indian claim thereto, actually bought it twice, and some
portions of it three times. It is proper, however, to add in this
connection that where the government at the date of a purchase from one
tribe was aware of an existing claim to the same region by another
tribe, it had the effect of diminishing the price paid.
ORIGINAL AND SECONDARY CESSIONS.
Another difficulty that has arisen, and one which, in order to avoid
confusion, will necessitate the duplication in the atlas of the maps of
several States, is the attempt to show not only original, but also
secondary cessions of land. The policy followed by the United States for
many years in negotiating treaties with the tribes east of the
Mississippi River included the purchase of their former possessions and
their removal west of that river to reservations set apart for them
within the limits of country purchased for that purpose from its
original owners, and which were in turn retroceded to the United States
by its secondary owners. This has been largely the case in Missouri,
Arkansas, Kansas, Nebraska, and Indian Territory. The present State of
Kansas, for instance, was for the most part the inheritance of the
Kansas and Osage tribes. It was purchased from them by the provisions of
the treaties of June 2, 1825, with the Osage, and June 3, 1825, with the
Kansas tribe, they, however, reserving in each case a tract sufficiently
large for their own use and occupancy. These and subsequent cessions of
these two tribes must be shown upon a map of "original cessions."
After securing these large concessions from the Kansas and Osages, the
government, in pursuance of the policy above alluded to, sought to
secure the removal of the remnant of Ohio, Indiana, and Illinois tribes
to this region by granting them, in part consideration for their eastern
possessions, reservations therein of size and location suitable to their
wishes and necessities. In this way homes were provided for the
Wyandots, Delawares, Shawnees, Pottawatomies, Sacs and Foxes of the
Mississippi, Kickapoos, the Confederated Kaskaskias, Peorias,
Piankeshaws, and Weas, the Ottawas of Blanchard's Fork and Roche de
Boeuf, and the Chippewas and Munsees. A few years of occupation again
found the advancing white settlements encroaching upon their domain,
with the usual accompanying demand for more land. Cessions, first; of a
portion and finally of the remnant, of these reservations followed,
coupled with the removal of the Indians to Indian Territory. These
several reservations and cessions must be indicated upon a map of
"secondary cessions."
Object illustration is much, more striking and effective than mere
verbal description. In order, therefore, to secure to the reader the
clearest possible understanding of the subject, there is herewith
presented as an illustration a map of the State of Indiana, upon which
is delineated the boundaries of the different tracts of land within that
State ceded to the United States from time to time by treaty with the
various Indian tribes.
The cessions are as follows:
No. 1. A tract lying east of a line running from opposite the mouth of
Kentucky River, in a northerly direction, to Fort Recovery, in Ohio, and
which forms a small portion of the western end of the cession made by
the first paragraph of article 3, treaty of August 3, 1795, with the
Wyandots, Delawares, Miamis, and nine other tribes. Its boundaries are
indicated by scarlet lines. The bulk of the cession is in Ohio.