THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY flSfi 



However, as will be seen when allusion is made to the policy of the 

 nations in their dealings with the Indians, there was some ditt'erence 

 in regard to the extent of their right or title. This was limited by 

 some of the governments to the territory occupied, while by others, as 

 tlie United States, it was usual to allow it to extend to the territory 

 claimed, where the boundaries between the different tribes were under- 

 stood and agreed on. It would seem, in fact, that the United States 

 proceeded on the theory that </// the land was held by natives. A sin- 

 gle instance occurs to the writer at present where land was taken pos- 

 session of as waste or without an owner. This is mentioned by Mr 

 Royce in his remarks under schedule number 432. 



The right of occui)ancy in the Indians, until voluntarily relinquished 

 or extinguished by justifiable conquest, being conceded, it became nec- 

 essary on the i)art of the Government to adopt some policy to extinguish 

 tlieir right to such territory as was not necessary for their actual use. 



As a natural corollary of this theory arose the question, With whom 

 shall the Government treat? The Indians having no general govern- 

 ment or regular political organization, but consisting of numerous 

 independent tribes in a state of savagery, the usual policy of civilized 

 nations in a case of conquest could not be adopted. As their claims 

 were those of tribes or communities, and not individuals in severalty, 

 it followed as"a matter of necessity that the ouly policy which the Gov- 

 ernment could adopt was to recognize them as (pxasi and dependent, 

 distinct political communities, or nations, or half sovereign states, and 

 treat them as such. 



It has been said that the method of regarding them as distinct 

 peoples or nations and treating with them as such is a "legal fiction." 

 Nevertheless, if we study carefully all tlie circumstances which sur- 

 round the case, and the pressing necessities of the Republic in its early 

 days, we are likely to be convinced that it was not the part of wisdom 

 then to hamper the struggles for nati(nuil life with theoretic lines or 

 legal technicalities, which stood in the way of practical progress. 

 Humanity is an element which should attend every step of governmental 

 as well as of individual progress, but political theories must be broad- 

 ened, restricted, or varied in accordance with new and imperative 

 necessities which arise. 



It is doubtless true that the recognition of the Indian tribes as dis- 

 tinct nationalities, with which the Government could enter into solemn 

 treaties, was a legal fiction which should be superseded by a more 

 correct policy when possible. But necessity often makes laws, and in 

 this instance forced the Government to what was, in its early days, 

 probably the best possible policy in this respect, consistent with 

 humanity, which it could have adopted. 



A doubt has also been expressed as to whether the United States or 

 any European power could, with perfect honesty and integrity, purchase 

 18 ETH, PT 2 2 



