Lancaster gazette. [volume] (Lancaster, Mass.) 1828-1830, 1829-12-29

:" ""uiFiuudtS, ana might not IN
properly be designated by the technical
phrase OF ss'sin in fee; though this con,
t!!ngent interest was subject to the Indian
ute OF occupancy, which title was certain
y to be respected by all Courts, until it
should have been legitimateIy extinguish-
ed. q Cranch, l42.
In the case of johnson and Mcintosh
the point decided was, that grants of land.
by Indian chiefs, to individuals among the
whites, cannot be sustained by the Courts
OF this country. The reason assigned is,
that the rulers of the European nations,
the legislatures Of the colonies before the
revolution, and Of the several States, and
the United States, since the revolution,
have all asserted the exclusive right of the
government to extinguish the Indian title.
The Court did not feel justified in going
INTO the consideration of abstract princi-
pies. This was question CT municisal
law, which had been settled by the prac-
tlce of the governments of Europe and
America, from the discovery of this con-
tlnent to the present time.
But the Court was very explicit, in ad-
hitting the Indian title Of occupancy.
After stating that the governments of
Europe agreed among themselves to re-
sPect the right of discovery as claimed by
each, the Court said -
" The exclusion of all other European
nations necessarily gave to the nation
making the discovery, the sole right of ac-
curing the soil from the matiyes. and es-
tabllshing settlements upon it." s Whea-
ton, p. 573.
Again =" They 1.-THE original inhabi-
tants were admitted to be the rightfuI
occupants Of the soil, Nth a legal as nell
as aJust claim to retain possession of it.,
and to use it according to their own dis.
cretion." P. 574.
Yet, as the Indians could not sell to
foreign nations, except to the discoveries,
and those claiming under them, (this be-
ing matter of agreement among the Eu-
ropean nations ;; and as they could sell to
private purchasers, this being matter of
municipal law among the whites, and Of
ten Of treaty stipulation between whites
and Indians, the natural rights of the In
dams were impaired, or rather circum-
scribed or limited. There was nothing
in this limitation, however, of the nature
of usurpation, or encroachment. 1t was
a matter of necessity, if perpetual COLI
slons were to be avoided and matter
of mutual benefit to colonists from differ
ent nations, and especially of benefit to
the Indians. What scene of strife, en-
nifty, fraud, and bloodshed, would have
been exhibited, if English, French, and
Spanish colonists had been permitted to
make purchases of Indian lands from the
same tribe, in the same neighbourhood,
and at the same time ? And what impo-
sitions would have been practised upon
Indians by white purchasers, if they had
been allowed to make bargains with the
natives, without any restraint from the
government 1t is both absurd and cruel
to make this necessary Limitation of the
natural rights of the Indians, "a Limitation
which was necessary to the protection and
security of all parties) the ground Of de-
nying that the Indians have any rights
at all. The Court gives no sanction to
such an absurdity. Besides the passages
already quoted, are several others in ac-
cordance with the same principles.
So 1t has never been contended," says
the Court. that the Indian title amount
ed to nothing. Their right of possession
has never been questioned. The claim
of government extends to the complete uI-
innate title, charged Nth chs right Of
possession and to the e1clusioe power of
acquiring that right" P.6OS.
The Indians have the right then Of pos
sessing their country, without limitation
Of time though they are restrained from
selling their country to any individuals or
any community, except the general gov
eminent; restraint which operates ale
together in their favour.
Again, the Court says: such right
1.-THE Indian title of occupancy is no more
incompatible with seisin in fee, than a
lease for years is. and might as effectual-
ly bar an ejectment." P. 592.
I consider this passage as most decid.
eddy in favour of the right of the Chero-
KEGS to remain on their land, as long as
they please. Most readers of newspapers
do not understand terms oflaw. l must
be permitted, therefore, to attempt an il
Illustration Of what is, to a lawyer, perfect
ly plain.
If A. holds land to himself and his
heirs forever, he is said to be seised in fee
of that land. He may sell an estate, or
interest, in the land of B. and his assigns,
for hundred or a thousand years, and
yet he will himself remain seised in fee
because, at the expiration of the hundred
or the thousand years, the land will come
again to the possession of his heirs. Dur
ing all this time A. and his heirs are seised
in fee, and B. and his assigns are tenants
for years. Now decision that Georgia
.