6

INDIAN TREATIES.

By a secret treaty, which was executed about the same time, France ceded Louisiana to Spain; and Spain has since retroceded the samecountry to France . At the time both of its cession and retrocession, itwas occupied, chiefly, by the Indians.

Thus, ail the nations of Europe , who have acquired territory on thiscontinent, have asserted in themselves, and have recognised in others, theexclusive right of the discoverer to appropriate the lands occupied by theIndians. Have the American States rejected or adopted this principle 1

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “ proprietyand territorial rights of the United States, ” whose boundaries were fixedin the second article. By this treaty the powers of government, and theright to soil, which had previously been in Great Britain , passed definitivelyto these states. We had before taken possession of them, by declaringindependence; but neither the declaration of independence, nor the treatyconfirming it, could give us more than that which we before possessed, orto 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 allthe lands within the boundary lines described in the treaty, subject onlyto the Indian right of occupancy, and that the exclusive power to extinguishthat right, was vested in that government which might constitutionallyexercise it.

Virginia, particularly within those chartered limits the land in contro-versy lay, passed an act, in the year 1779, declaring her “ exclusive rightof pre-emption from the Indians, of all the lands within the limits of herown chartered territory, and that no person or persons whatsoever, have,or ever had, a right to purchase any lands within the same, from anyIndian nation, except only persons duly authorized to make such purchase ;formerly for the use and benefit of the colony, and lately for the common-wealth.” The act then proceeds to annul all deeds made by Indians toindividuals, for the private use of the purchasers.

Without ascribing to this act the power of annulling vested rights, oradmitting it to countervail the testimony furnished by the marginal noteopposite to the title of the law, forbidding purchases from the Indians, inthe revisals of the Virginia statutes, stating that law to be repealed, it maysafely be considered as an unequivocal affirmance, on the part of Virginia,of the broad principle which had always been maintained, that the exclu-sive 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 land office for the sale of that country which now constitutesKentucky, a country every acre of which was then claimed and possessedby Indians, who maintained their title with as much persevering courageas was ever manifested by any people.

The states, having within their chartered limits different portions ofterritory covered by Indians, ceded that territory, generally, to the UnitedStates , on conditions expressed in their deeds of cession, which demonstratethe opinion, that they ceded the soil as well as jurisdiction, and that indoing so, they granted a productive fund to the government of the union.The lands in controversy lay within the chartered limits of Virginia, andwere ceded with the whole country north-west of the river Ohio . Thisgrant contained reservations and stipulations, which could only be madeby the owners of the soil; and concluded with a stipulation, that “ all thelands in the ceded territory, not reserved, should be considered as a com-mon fund, for the use and benefit of such of the United States as havebecome, or shall become members of the confederation,” &c., “ accordingto their usual respective proportions in the general charge and expenditure,and shall be faithfully and bona fide disposed of for that purpose, and forno other use or purpose whatsoever.”

The ceded territory was occupied by numerous and warlike tribes of