THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 533 



becniise they had obtaiucd thu Indiau title otherwise thau through the agency of 

 government. The very grant of a charter is an assertion of the title of the crown, 

 and its words convey the same idea. The country granted is said to be "our island 

 called Rhode Island;" and the charter contains an actual grant of the soil, as well 

 as of the powers of government. 



The decision in this case is of course conclusive in regard to the 

 nature of tlie Indian title to lands as held by our Government. Never- 

 tlieless, a brief reference to the history of the subject preceding the 

 date of deci.sion (1823) will be appropriate here before alluding to the 

 policy adopted in regard to the extinguishment of this title. 



Asearly asSei)teniber22, 1783, while yet operating under the Articles 

 of Confederation, the following "proclamation" was ordered by Con- 

 gTess.' 



Whereas by the 9th of the Articles of Confederation, it is among other things 

 declared, that " the United States in Congress assembled have the sole and exclusive 

 right and power of regulating the trade, and managing .all affairs with the Indians 

 not members of any of the States, provided that the legisl.itive right of any State, 

 within its own limits, be not infringed or violated." And whereas it is essential to 

 the welfare of the United States, as well as necessary for the maintenance of har- 

 mony and friendship with the Indi.ans, not members of any of the States, that all 

 cause of quarrel or complaint between them and the United States or any of them, 

 should be removed and prevented; therefore, the United States in Congress assem- 

 bled, have thought proper to issue their proclamation, and they do hereby prohibit 

 and forbid all persons from making settlements on lauds inhabited or claimed by 

 Indians, without the limits or jurisdiction of .my particular State, and from pur- 

 chasing or receiving any gift or cession of such lands or claims -without the express 

 authority and direction of the United States in Congress assembled. 



It IS, moreover, declared that eveiy such purchase or settlement, gift 

 or cession, not having the authority aforesaid, is null and void, and that 

 no right or title will accrue in consequence of any such purchase, gift, 

 or settlement. 



By the eighth section of the act of Congress of March 1, 1793, enti- 

 tled " An act to regulate trade and intercourse with the Indian tribes," 

 the same principle was enacted into law, as follows: 



And be it further enacted, That no purchase or grant of lands, or of any title or 

 claim thereto, from any Indians, or nation or tribe of Indians, within the bounds of 

 the United States, shall be of any validity, in law or equity, unless the same be made 

 by a treaty or convention entered into pursuant to the constitution. And it shall 

 be a misdemeanor in any person, not employed under the authority of the United 

 States in negotiating such treaty or convention, punishable by tine not exceeding 

 one thousand dollars, and imprisonment not exceeding twelve months, directly or 

 indirectly to treat with any such Indians, nation or tribe of Indians, for the title 

 or purchase of any lands by them held or claimed: Provided, nevertheless, That it 

 shall be lawful for the agent or agents of any State, who may be present at any 

 treaty held with the Indians, under the authority of the United States, in the pres- 

 ence, and with the approbation of, the Commissioner or Commissioners of the United 

 States appointed to hold the same, to propose to, and adjust with, the Indians, the 

 compensation to be made for their claims to lands within such State, which shall 

 be extinguished by the treaty. '^ 



'Old Journals, vol. iv (17S3).p. 275, as copied in "Lawe, etc., respecting the Public Lands," Wash- 

 ington, Gales & Se.iton 1828; pp.338-339. 

 ' Op. cit , pp. 414-415. 



