586 INDIAN LAND CESSIONS IN THE UNITED STATES [eth.an.v.18 



or cause to be removed, from time to time, by such means, and in such manner as be 

 shall judge proper, all persons other than Indians who shall so take possession of or 

 settle or intrude on auy of the waste or ungranted lands of this State, within the 

 limits aforesaid, and to cause the buildings orother improvements of such intruders 

 on such lands, to be destroyed; and for that purpose, in his discretion, to order out 

 any jiroportiou of the militia from auy part of this State, and such an occasion to be 

 deemed an emergency, intended in the second section of the act entitled "An ait to 

 regulate the militia," passed the fourth day of April, 1786. And the detachments so 

 from time to time to be ordered out, shall receive the same pay and rations, and be sub- 

 ject to the same rules and regulations, as is jirovided in the said section of the said act.' 



Before closing this section, the following remarks by Yates and 

 Moulton^ ill regard to the policy of the State of New York iu this 

 respect are pi'eseuted, in order that they may be considered in con- 

 nection with the facts which have been given: 



In New York, prior to the confederacy of the Union, the same principle as that 

 which was eontirmed in Virginia was adopted as an article (37) of the constitution of 

 1777, and reincorporated in that of 1822 (article 7, section 12). It rendered contracts 

 made with the Indians void unless sanctioned by the legislature. Before and since 

 the adoption of the constitution of the United States various legislative provisions 

 have been made relative to the different Indian tribes and nations within the State. 

 Judicial decisions have also followed some of which were deemed to run counter to 

 the broad principle as settled in the last case by the courts, and were therefore 

 reversed directly or virtually. But it had Ijeen early settled that possession of 

 Indians did not invalidate a patent from the State, and that sales by Indians were 

 void made to the whites without legislative sanction. But in the final decision of 

 the Court of Errors, it was considered, that from the constitutional provisions of the 

 State, from the object and policy of the act relative to the different tribes and 

 nations within this State, declaring such iiurchases (without legislative sanction) 

 a penal oiience; from the construction in jmri materia of the whole code of Indian 

 statute law, from the special act of 1778 to that of 1810 ; from a review of the history 

 of the Sis nations from their first alliance with the Dutch until the surrender of tho 

 colony to the English, and from the time when they placed themselves under the 

 protection of the latter to the present period, having for more than a century been 

 under their and our protection; from the resolutions of Congress and Our public 

 treaties, all combining to elucidate the principle of pre-eminent claim, and from the 

 whole scope and policy of these constitutional and legislative provisions originating 

 iu the cautious and parental policy of government to protect the Indians in the pos- 

 session of their lands from the frauds and imposition, superior cunning, and sagacity 

 of the whites; they were to be deemed as incapable of aliening as inoper concilii, 

 and therefore, that, although they are regarded not as citizens, but as independent 

 allies, or alien communities, still continuing under the jirotection of government, 

 and exempt from the civil municipal laws which regulate citizens, (though not from 

 the operation of our criminal code for crimes committed within our jurisdictional 

 limits, though among themselves) nevertheless, all contracts for lands, whether 

 from a tribe or nation — from Indians or from an individual Indian, whether such 

 individual be au Indian heir deriving from a military grant from government, 

 (which though presumed from lapse of time to have issued lawfully, must be con- 

 strued as a grant to the Indian and his Indian heirs and assigns) yet such is their 

 total incapacity to convey to whites, that all contracts for lands are not only void, 

 but reciprocally inoperative, except such individual sales as shall first receive, pur- 

 suant to the act of the legislature, the approval of the Surveyor General of the State, 

 to be indorsed on the deed from such Indian. 



' Lawfi of Colonial ami Sta+e Gorernmenta in Regard to luiliau Atlairs, pp. 63-G5. 

 2 History ot New York (1824), vol. i, pp. 308-10. 



