I0 INDIAN TREATIES. the possession of the lands they occupied, and WGIIC considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not asthe right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in thelcrown, and its grantees; which could be granted by the crown or colomal legislatures, while the lands remained in possession of the Indians; though possession could not be taken without their consent. United States v. Clark, 9 Peters, Individuals could not purchase Indian lands without permission or license from the crown, colonial governors, or according the rules prescribed h colonial laws; but such purchases were valid with such license, or in conibrmity with the local laws: and by this umon of the perpetual right of occupancy with the ultimate fee, which passed from the crown by the license, the title of the purchaser became complete. Ibzd. · Indian possession or occupation was considered with reference their habits and modes of life; their hunting-grounds. were as much lin their actual possession, as the cleared fields of the whites ; and their rights to its exclusive enjoyment in their own way, and for their own purposes, were as much respected, until th;-y abandoned them, made a cessron the government, or an authorized s e to individuals. I In either case their rights became extinct, the lands could be granted drsencumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Pennsylysancja, Maryland, Virginia, North Carolina, South Carolina and Geor ia. i . Grantsgmade by the Indians at public councils, since the treaty at Fort Stanwick’s, have been made directly to the purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them; of which there are many instances of large tracts so sold and held ; especially in New York. Ibid. It was an universal rule, that purchases made at Indian treaties, in the presence, and with the approbation of the officer under whose direction the were held by the authority of the crown, gave a valid title to the lands; it prevailed under the laws of the states after the revolution, and yet continues in those where the right to the ultimate fee is owned by the states, or their grantees. It has been adopted by the United States, and purchases made at treaties held by their authority, have been always held good by the ratification of the treaty, without an patent to the purchasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative, the king was the universal occupant of all vacant lands in his dominions, and had the right to grant them at his pleasure, or by his authorized officers. Ibid. When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes, before the acquisition of the territory by Spain and Great Britain, remained in force over all the ceded territory, as the laws which regulated the relations with all the Indians who were parties to them, and were binding on the United States, by the obligation they had assumed by the Louisiana treaty, as 3 supreme law of the land, which was inviolable by the power of congress They were also binding as the fundamental law of Indian rights ; acknow ledged by royal orders, and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking possession of the provmcest and by the acts of congress, which assured all the inhabitants of protection rn their property. It would be an unwarranted constructron of these treaties, laws, ordinances and municipal regulations, to decide that theilndums were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either, had the provinces remained under the dominion of Spain. It would be rather a
Page:United States Statutes at Large Volume 7.djvu/20
This page needs to be proofread.