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 Indian tribes, constituting the
Illinois and the Piankeshaw nations; and the question is, whether
this title can be recognised 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 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.
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 it 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 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.
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, 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. . . . .
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 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. . . . .
Although we do not mean to engage in the defence 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 connexions, and united by force to strangers.
When the conquest is complete, and the conquered inhabitants can
be blended with the conquerors, 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 neighbourhood, 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 neighbourhood
of agriculturists became unfit for them. The game fled 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 parcelled 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 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.
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