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Aboriginal title statutes in the Thirteen Colonies

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A map of British North America, as affected by the Royal Proclamation of 1763

Aboriginal title statutes in the Thirteen Colonies were one of the principal subjects of legislation by the colonial assemblies in the Thirteen Colonies. With the exception of Delaware, every colony codified a general prohibition on private purchases of Native American lands without the consent of the government. Disputes were generally resolved by special interest legislation or war. Mohegan Indians v. Connecticut (1705–73), a lawsuit that proceeded for 70 years under special royal enabling acts only to be dismissed on non-substantive grounds, was the first and only judicial test of indigenous tenure.[1]

Aboriginal title remained a central political and economic issue and was listed as one of the enumerated grievances in the Declaration of Independence. Regardless, colonial land law relating to indigenous peoples became the foundation for aboriginal title in the United States during the Articles of Confederation-era and after the ratification of the United States Constitution. The colonial-law prohibition was codified at the federal level by the Confederation Congress Proclamation of 1783 and the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1834.

Pre-Revolutionary land transactions remained the subject of political and legal disputes well after Independence.[2] However, in sharp contrast to post-1790 transactions, no Indian tribe has yet succeeded in litigating or receiving compensation for a pre-1790 transaction. The prevailing view remains that the colonial governments, and the state governments that succeeded them during the Confederation era, had the power to authorize the alienation of indigenous lands within their borders.[3]

British law

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Main article: Aboriginal title

The British monarchy made two attempts to regulate aboriginal land transactions in British North America by Royal Proclamation: first, the Royal Proclamation of 1622; second, the Royal Proclamation of 1763.

Statutes by colony

Connecticut

The Connecticut Colony (est. 1636) and the New Haven Colony (est. 1637) merged in 1662.

Connecticut Colony

In 1637, the Connecticut Colony authorized a military expedition to Pequot lands to “maynteine our right that God by Conquest hath given to us.”[4] Soon after, the colony decided to hold sachem's liable for the trespass of any Indian.[5] The conquered Pequot land's were “dispose[d] . . . with lest prejudice to others that may hereafter succeed them.”[6]

The first prohibitions on transactions prohibited leases, either to or from Indians.[7] The first prohibition on taking Indian property did not arise until 1660.[8] This was explicitly extended to land acquisitions in 1663.[9] The prohibition was strengthened in 1680.[10] The penalties were increased again in 1687.[11]

"Gold Hill" was the first Indian reservation in the colony, established in 1659 and confirmed in 1678.[12] Indians were also explicitly permitted to use public lands for hunting.[13] In other instances, the colony resolved land disputes between competing Indians.[14] Other reservations were established for the Mohegans in New London in 1718[15] and others in 1726 (which were exempted from the application of adverse possession),[16] including the Pequot's before 1731.[17]

The power to purchase Indian lands was delegated to townships in 1702.[18] In 1706, the colony offered amnesty for those who had purchased in violation of previous prohibitions as long as they provided a "true account."[19] In 1717, the colony declared “all lands in this government are holden of the King of Great Britain as the lord of the fee,” barred the introduction of private purchases as evidence, and established a committee to "settle this whole affair."[20] Noting that the prohibition was among the most "ancient laws" of the colony, the fine was increased in 1722, and treble damages were imposed.[21] No compensation was provided in the case of eminent domain.[22]

New Haven

Prior to merging with the Connecticut Colony, the New Haven Colony also prohibited private purchases of Indian lands unless "in the name and for the use of the whole plantation.”[23]

Delaware

Delaware appears to have passed no laws concerning Indian lands.

Georgia

In 1758, Georgia passed a prohibition of private purchases of Indian lands:

[I]f any person or persons whosoever shall attempt to purchase or contract for, or cause to be purchased or contracted for, or shall take or acept of a grant or conveyance of any lands or tracts of lands from any Indian, or body of Indians, upon any prtence whatsoever, (except for the use of the crown and that by permission for this purpose first had and obtained from his majesty, his heirs or successors, or his or their governor or commander in chief of the said province for the time being) every such purchase, grant, contract and conveyance, shall be, and is and are hereby declared to be null and void, to all intentts an purposes whatsoever . . . .[24]

Maryland

In 1639 Maryland codified separate prohibitions on land purchases from Indians and non-English Europeans, set to expire at the end of the next session of the general assembly; the latter provided:

Neither Shall [a subject of the King] obteine procure or accept of any Land within this Province from any Indian to his own or the use of any other than the Lord Proprietarie or his heirs[,] nor shall hold or possess and land . . . and upon pain that every person offending . . . Shall forfeit and lose to the Lord Proprietarie and his heirs all Such Lands so accepted or held without Grant of the Lord Proprietarie under him.[25]

This forfeiture provision was renewed in 1649.[26] Indian reservations were established in 1666.[27] Their boundaries were modified in 1698,[28] and enlarged in 1711.[29] Indian reservation boundaries were re-surveyed in 1721.[30] The Nanticoke reservation was extinguished in 1768.[31]

Unlike many colonies, Maryland provided limited legal remedies for the violation of Indian property rights. In 1704, the colony provided that non-Indians who took timber from Indian lands would be “lyable to Action or Actions of trespass[,] And the persons grieved shall and may recover their Damages accordingly.”[32] It later authorized specific proceedings for "Indian-English" disputes; in the third such authorization, jurisdiction was extended to “punishing Trespasses committed on their Lands,” claims arising from the renting of Indian lands, and “Trespasses and Wastes on such of the said Indian Lands, which have not been granted to any of the Inhabitants of this Province."[33]

Massachusetts

The Plymouth Colony (est. 1620) and the Massachusetts Bay Colony (est. 1628) merged in 1691. After the combination of the two colonies, in 1701, a new prohibition was codified:

[A]ll deeds of bargain, sale, lease, release, or quitclaim, titles and conveyances whatsoever, of any lands . . . within this province . . . had, made, gotten, procured or obtained from any Indian or Indians by any person or persons whatsoever at any time [since 1633] without the license or approbation of the respective general courts of the said late colonys [or the current colony for purchases after 1701] shall be deemed and adjuded in the law to be null, void and of none effect.[34]

The law validated all titles in Martha's Vineyard[35] and the Island of Nantuckett and all other titles preceded by a grant from the colony.[34] Henceforth, any violator would be subject to a fine of twice the value of the land and 6 months in prison.[34] In 1719, the Mashpee's lands were exempted, and their sale was authorized in 1777.[36]

In 1723, the Hassanimscoe were exempted from property tax.[37] In 1736, they were granted a 6 miles square reservation, whose borders were amended several times in 1737 and 1739.[38] Indian lands within the township of Edgartown on Chappaquiddick were protected for 3 years in 1774.[39]

Plymouth

A 1643 Plymouth statute acknowledged the “constant custome from our first beginning That no person or persons have or ever did purchase Rent or hire any lands . . . of the Natives but by the Majestrates consent” and proscribed:

[I]f any person or persons do hereafter purchase or rent or hyre and lands . . . of any of the Natives in any place within this government with the consent and assent of the Court Every such person or persons shall forfait [fives times the value plus five pounds for every acre].[40]

In 1652, the colony legislated an exception to this prohibition, for those who had failed to satisfy the conditions of their land grants resulting in the lands being re-granted to other non-Indians.[41] The exception was only to last for 14 months from the end of the Court session, but was extended until June 1656.[42] The colony later retroactively validated some purchases made in violation of this prohibition.[43] In 1660, the prohibition was interpreted to apply to gifts of land.[44] In 1663, the prohibition was extended to mere use.[45] In 1668, the prohibition was extended to "mount hope or Cawsumsett necke or any other neckes or tracts of land as there is a body of Indians upon"; as amended, the lands would be forfeited to the colony if the purchaser could not afford the fine.[46]

In 1674, the colony established a one-year statute of limitations "concerning Indian claimes that are or shalbe made to any lands within this Government; which are now orderly possessed by the English those which doe lay claime to them shall orderly comence and prosecute theire claime as farr as hee or they are able; wihtine one yeare after they be of age; and noe longer and that care be taken that the Indians have notice of it."[47]

Massachusetts Bay

The Massachusetts Bay colony codified its first prohibition on private purchases of Indian lands in 1634: “[N]oe person whatsoever shall buy any land of any Indean without leave from the Court.”[48] The first land recording law, instructed Steven Winthrope to record, inter alia, “all the purchases of the natives.”[49]

The Code of 1648 codified the prohibition such: “It is ordered by Authoritie of this Court; that no person whatsoever shall henceforth buy land of any Indian, without licence first had and obtained of the General Court: and if any shall offend heerin, such land so bought shall be forfeited to the Countrie.”[50] A 10-pounds-per-acre forfeiture was ordered in 1687.[51]

In 1652, the colony acknowledged aboriginal title, in a statute that made reference to several biblical verses:

[W]hat lande any of the Indians, within this jurissdiction, have by possession or improvement, by subdueing of the same, they have just right thereunto, according to that Gen: 1: 28, chap: 9: 1, Psa.: 115, 16. And… if any of the Indians shalbe brought to civillitie… such Indians shall have allotments… according to the custome of the English in the like case.[52]

Only if the Indians were evicted from “planting groundes or fishing places,” were the Indians to "have reliefe in any of the Courts of justice amongst the English, as the English have."[52]

In 1681, the Dedham Indians were confined to the towns of Nanticke, Punkapauge. and Wamesti.[53] In 1685, the colony confirmed 5,800 acres of land to Indians in Marlborough and voided all deeds to the contrary.[54]

New Hampshire

New Hampshire codified a rather weak prohibition against private purchases in 1641: “[W]hoever buys the Indian Ground by way of purchase is to tender it first to the town [of Exeter] before they are to make proper use of it in particular to themselves.”[55] In 1677, the colony ordered the resettlement of the Piscataqua Indians.[56] The colony's instructions to Edmund Andros in 1686 included instructions to purchase Indian lands.[57]

New Hampshire codified a more serious prohibition in 1687:

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[H]enceforth noe person or persons whatsoever Doe presume to tamper or treat with any Indian or Indians about the purchase sale or Confirmation of any Land or Lands whatseover within this his Majesties Territory and Dominion of the New England NOR from them or any of them take or receive any Deed or Sale Gift Mortgage Conveyance Lease Contract or Confirmation whatsoever without Leave or Lycense first had and obteyned from the Governour for the tyme being under his hand and Seale On peanlty of Forfeiture of [20 pounds per acre] AND that all such… shall be utterly void and null.[58]

In 1719, penalties were added, retroactive to violations from 1700: forfeiture, a fine of the value of the land, and 6 months in prison.[59]

New Jersey

In May 1683, the colony authorized a Commissioner to buy lands from Indians and resell the lands in plots not to exceed 5000 acres each.[60] In September 1683, the colony codified a prohibition against private purchases:

[N]o Person or Persons, shall presume to buy any Tract or Tracts of Land, of, or from the Indians within this Province, without special Order and Authority to him and them given by the Governor and Commissioners, or the major Part of them for the time being.[61]

Any purchase to the contrary would be “null and void” and subject to a fine of 5 shillings per acre.[61] The prohibition was included in the colony's instructions to Lord Cornbury.[62] In 1703, the prohibition was made more specific, to include “Gift of Purchase in Fee, take a Mortuage or Lease for Life or number of Years”; the authorization method was changed to “Certificate, under the hand of the Proprietors Recorder”; the fine was raised to 40 shillings per acre; and the forfeiture provision was applied to “Purchasers, their Heirs and Assigns shall forever hereafter be incapable to hold Plea for the said Land in any Court of Common Law or Equity.”[63]

In 1758, the colony appropriated for the Commissions “such Sum and Sums of Money, as they may find necessary to purchase the Right and Claim of all or any of the Indian Natives of this Colony, to and for the Use of the Freeholders in this Colony, their Heirs and Assigns, for ever”; the maximum appropriation was to be 1600 pounds, no more than half of which was to go to the Delawares near Cranbury.[64] As recounted by later, unrelated, judicial opinion:

In 1758 the State of New Jersey purchased the Indian title to lands in that State, and as a consideration for the purchase, bought a tract of land as a residence for the Indians, having previously passed an act declaring that such lands should not be subject thereafter to any tax by the State, any law or usage, or law then existing, to the contrary notwithstanding. The Indians, from the time of purchase, lived upon the land until the year 1801, when they were authorized, by an act of the Legislature, to sell the land.[65]

New York

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Main article: Aboriginal title in New York

The Director and Council of New Netherland passed a law holding citizens liable for damages to Indian crops in 1640.[66] In 1652, the colony legislated to "“hereby dissolve, annul and make void all claimed or occupied purchases, sales, patents and deeds signed.”[67] Previous purchases were confirmed in 1670.[68]

The General Assembly of New York codified a prohibition on private purchases of Indian lands in 1684:

[H]enceforward noe Purchase of Lands from the Indians shall bee esteemed a good Title without Leave first had and obtained from the Governour signed by a Warrant under his hand and Seale and entered on Record in the the Secretaries office att New Yorke and Satisfaction for the Purchase acknowliged by the Indians from whome the Purchase was made which is to bee Recorded likewise with purchase soe made and prosecuted and entered on Record in the office aforesaid shall from that time be Vallid to all intents and purposes.[69]

North Carolina

North Carolina defined its boundaries with the Meherrin Indians in 1729.[70] In 1748, the colony passed a prohibition on private purchases which applied only to Tuscarora lands, and imposed a fine of 10 pounds for every 100 acres:

[N]o Person, for any Consideration whatsoever, shall purchase or buy any Tract or Parcle of Land, claimed, or in Possession of any Indian or Indians, but all such Bargains and Sales shall be, and are hereby declared to be null and void, and of none Effect.[71]

The colony authorized the leases of Tuscarora lands in 1766.[72]

Pennsylvania

The colony passed its first prohibition on private purchases of Indian lands in 1683:

[I]f anie person shall presume to buy any Land of the Natives in the Limits of this Province or territories thereof, without Leave from the Proprietary and Governor therof, or his desputy, Such person shall Lose the said Land, and pay [fine of 10 shilings per 100 acres].[73]

The statute was abrogated by the crown in 1683, but re-enacted the same year.[73] A similar law was passed in 1700[74] and supplemented in 1730 by more specific legislation (and exempted from any statute of limitations).[75]

The colony passed legislation to clear title to all land grants from the colony in 1712; the act declared such grants “free and clear, and freely and clearly acquitted and discharged, or otherwise well and sufficiently saved harmless and indemnified by the said proprietary, his heirs and assigns, of and from all Indian claims, and all other [claims of non-Indians].”[76]

In 1768, the colony proscribed violations of the Royal Proclamation of 1763; the punishment was to be “death without the benefit of clergy.”[77] In 1769, the punishment was set at a 500-pound fine, 1 year in prison without bail or mainprise, plus a moiety paid to the poor.[78]

Rhode Island

Early Rhode Island laws restricted Indians from certain areas.[79] Later laws were also passed in this vein.[80]

In 1651, the colony passed its prohibition on private purchases of Indian lands:

[N]o purchase shall be made of any Land of the natives for a plantation without the consent of this State, except it bee for the clearinge of the Indians from some particular planatations already sett down upon; and if any shall so purchase, they shall forfeit the Land so purchased to the Collonie . . . .[81]

A 20-pound fine was added in 1658.[82] The wording of the prohibition was broadened and a 100-pound fine was added in 1727.[83] The colony repealed its prohibition on private purchases of Indian lands in 1759.[84] Certain sachems were prohibited from selling land in 1763.[85]

A 1663 law purported to commemorate the “surrender of [the Narragansetts], their subjects and their lands” to the protection of the King.[86] The colony authorized the acquisition of certain Narragansett lands in 1672.[87] In 1696 and 1713, laws were passed to void the purchases of various Narragansett lands.[88] Leases were permitted in 1718[89] and extended in 1738.[90]

South Carolina

The colony established the Palawanee Island as a reservation for the "Cusaboe" Indians in 1712.[91] In contrast, the colony appropriated Yamasee lands in 1716.[92]

In 1739, the colony passed its prohibition on private purchases of Indian lands:

[N]o person or persons whatever shall buy, bargain or treat for, or by any way or means whatever, procure, hold, obtain, or get any lands . . . from any Indian or Indians whatever.[93]

Virginia

Early colonial laws removed or permitted settlers on Indian lands on an ad hoc basis.[94] The first Indian reservations were established in 1649.[95] A Totopotomoi reservation was confirmed in 1653;[96] a "Wiccomocco" reservation in 1659;[97] an "Accomack" reservation in 1660;[98] a "Chickaominy" reservation in 1661 and 1662.[99]

Prohibitions on private purchases of Indian lands were passed in 1649, 1652, and 1656.[100] A new prohibition was passed in 1752.[101] The right of pre-emption was delegated to Northampton County in 1654.[102]

Title clearing acts were passed in 1660[103] and 1676.[104] Reservation boundaries were tightened in 1705.[105] Various sales ad leases were authorized or retroactively confirmed in the 1720s through 1770s.[106]

Notes

  1. ↑ (PDF) Mark D. Walters, Mohegan Indians v. Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America, 34 Osgoode Hall L.J. 785 (1996).
  2. ↑ See, e.g., Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
  3. ↑ See Oneida Indian Nation of New York v. New York, 860 F.2d 1145 (2d Cir. 1988).
  4. ↑ Law to Occupy Conquered Pequot Lands (June 2, 1637), in 17 Vaughan and Rosen, at 252 ch. 4 document 3; see also Council Order to Control Settlement of Narragansett Country (Aug. 23, 1676), in 17 Vaughan and Rosen, at 304-05 ch. 4 document 89 (claiming Narragansett lands to be “within the known limitts of our Charter,” "obtayned by conquest and successe of warr,” and declaring them “now are recovered out of the hands of the Indian enemies that had victorized over or caused the people totally to desert all those lands which they had possessed themselves of, formerly.”).
  5. ↑ Law to Require Indians to Pay for Trespasses (April 5, 1638), in 17 Vaughan and Rosen, at 253 ch. 4 document 6.
  6. ↑ Law to Authorize Disposal of Pequot Lands (April 10, 1642), in 17 Vaughan and Rosen, at 255 ch. 4 document 10.
  7. ↑ Law to Permit Limited Leasing of Land to Indians (March 9, 1648), in 17 Vaughan and Rosen, at 263 ch. 4 document 28 (applying to land east of the river and requiring permission of the Deputy Governor); Law to Prohibit Leasing of Land to Indians (May 20, 1647), in 17 Vaughan and Rosen, at 262 ch. 4 document 26 (noting “divers inconveniences” that arise when Indians “mixe themselves in their labours with the Inglishe”).
  8. ↑ Law to Prohibit Taking Indians’ Property (Oct. 4, 1660), in 17 Vaughan and Rosen, at 280 ch. 4 document 57 (“[I]t shal not be lawful for any in the Collony to take away by force or otherwise, without the owners consent, under pretenc of debt, the corne or other estate from any Indian, unless it be by virtue of order from lawful authority.”).
  9. ↑ Law to Prohibit Acquisition of Indian Land for Private Use (May 14, 1663), in 17 Vaughan and Rosen, at 282 ch. 4 document 60. (“[N]o person in this Colony shall buy, hire or receive as gift or mortgage, any parcel of land or lands of any Indian or Indians, for the future, except he doe buy and receive the same for the use of the Colony or the benefitt of some Towne, with the allowance of the Court”).
  10. ↑ Law to Prohibit Purchase of Indian Lands (May 17, 1680), in 17 Vaughan and Rosen, at 311 ch. 4 document 100 (“[W]hat land is allotted or set apart for any parcells of Indians within the bownds of any plantation . . . shall be recorded to them and the same shall remayn to them and their heirs for ever; and it shall not be in the power of any such Indian or Indians to make any alienations thereof; and whatsoever Englishman shall purchass any such lands . . . shall forfeit treble the value of what he so purchases to the publique treasury, and the bargain shall be voyd and null.”).
  11. ↑ Law to Regulate Purchase of Indian Lands (June 1, 1687), in 17 Vaughan and Rosen, at 314 ch. 4 document 107.
  12. ↑ Law to Confirm Indians’ Rights to Certain Lands (May 13, 1678), in 17 Vaughan and Rosen, at 308 ch. 4 document 96; Law to Resolve Land Dispute at Stratford and Fairfield (May 19, 1659), in 17 Vaughan and Rosen, at 277-78 ch. 4 document 51 (“[A]ccording to the desire of the Indians they may quietly possess and enjoy henceforth and for future, that parcel of land called Gold Hill . . . . [T]his parcel of land called Gold Hill, surrendered by Stratford unto Paquanack Indians . . . shalbe ful satisfaction from them unto the Indians forenamed, and that neither they nore their successors shal make any further claimes or demaunds of land from Startford . . . . [I]n case those Indians shal wholly or at any time relqinquish or desert Gold Hill . . . it shal remaine to Stratford Plantation . . . .”).
  13. ↑ Law to Authorize Indians to Hunt on Conquered Lands (May 16, 1685), in 17 Vaughan and Rosen, at 313 ch. 4 document 104; Law to Permit Indians to Use Certain Lands (Oct. 18, 1676), in 17 Vaughan and Rosen, at 306 ch. 4 document 91.
  14. ↑ E.g. Law to Confirm Boundary Between Mohegans and River Indians (Oct. 20, 1680), in 17 Vaughan and Rosen, at 312 ch. 4 document 102.
  15. ↑ Law to Secure Mohegans’ Possession of Their Lands (Oct. 9, 1718), in 17 Vaughan and Rosen, at 338 ch. 4 document 131; see also Law to Prohibit Removal of Wood from Mohegan Lands (May 8-June 6, 1760), in 17 Vaughan and Rosen, at 374 ch. 4 document 164; Law to Supervise Mohegan Lands and Promote Christianity (Oct. 8, 1719), in 17 Vaughan and Rosen, at 339 ch. 4 document 132.
  16. ↑ Law to Set Boundaries and Appoint Overseer for Indians near Kent (May 12-June 8, 1757), in 17 Vaughan and Rosen, at 372 ch. 4 document 161; Law to Protect Indian Lands in Western Connecticut (May 13–29, 1736), in 17 Vaughan and Rosen, at 358 ch. 4 document 155; Law to Protect Indians’ Title to Lands (Oct. 13, 1726), in 17 Vaughan and Rosen, at 350 ch. 4 document 145.
  17. ↑ Law to Protect Pequot’s Lands (May 13, 1731), in 17 Vaughan and Rosen, at 354 ch. 4 document 151.
  18. ↑ Law to Clarify Purchase of Indian Lands (Oct. 8-14, 1702), in 17 Vaughan and Rosen, at 318 ch. 4 document 114.
  19. ↑ Law to Further Regulate Purchase of Indian Lands (Oct. 10-18, 1706), in 17 Vaughan and Rosen, at 322 ch. 4 document 118.
  20. ↑ Law to Regulate Purchase of Indian Lands (May 9, 1717), in 17 Vaughan and Rosen, at 335 ch. 4 document 129.
  21. ↑ Law to Regulate Purchase of Indian Lands (Oct. 11, 1722), in 17 Vaughan and Rosen, at 340 ch. 4 document 134.
  22. ↑ See, e.g., Resolution to Build Highway through Mohegan Lands (May 12-June 8, 1757), in 17 Vaughan and Rosen, at 373 ch. 4 document 162.
  23. ↑ Law to Prohibit Unauthorized Acquisition of Land (Feb. 24, 1645), in 17 Vaughan and Rosen, at 395 ch. 5 document 7; Law to Prevent Individual Purchases of Land (Jan 4. 1640), in 17 Vaughan and Rosen, at 393 ch. 5 document 2.
  24. ↑ Law to Regulate Purchase of Land from Indians (Feb. 15, 1758), in 16 Vaughan and Rosen, at 406 ch. 3 document 14.
  25. ↑ Law to Regulate Land Purchases (Feb. 25-March 19, 1639), in 15 Vaughan and Rosen, at 259 ch. 2 document 3.
  26. ↑ Law to Regulate Purchases of Land from Indians (April 2–21, 1649), in 15 Vaughan and Rosen, at 268 ch. 2 document 13.
  27. ↑ Law to Grant Land to Friendly Indians (April 13-May 8, 1666), in 15 Vaughan and Rosen, at 283 ch. 2 document 34.
  28. ↑ Law to Establish Nanticoke Boundaries (Oct. 20-Nov. 12, 1698), in 15 Vaughan and Rosen, at 306 ch. 2 document 54.
  29. ↑ Law to Enlarge Nanticoke Lands (Nov. 3, 1711), in 15 Vaughan and Rosen, at 314 ch. 2 document 63.
  30. ↑ Law to Ascertain Boundaries of Indian Lands (1721), in 15 Vaughan and Rosen, at 321 ch. 2 document 69.
  31. ↑ Law to Compensate Nanticokes for Deserted Lands (June 18, 1768), in 15 Vaughan and Rosen, at 349 ch. 2 document 88.
  32. ↑ Law to Prevent Cutting Timber on Indian Lands (Oct. 3 1704), in 15 Vaughan and Rosen, at 311 ch. 2 document 59.
  33. ↑ Law to Determine Indian-English Controversies (May 1, 1756), in 15 Vaughan and Rosen, at 339 ch. 2 document 82.
  34. ↑ 34.0 34.1 34.2 Law to Prevent Illegal Land Purchases from Indians (June 26, 1701), in 17 Vaughan and Rosen, at 166 ch. 2 document 125.
  35. ↑ Law to Confirm Titles ot Land on Martha’s Vinyard (Feb. 24, 1763), in 17 Vaughan and Rosen, at 203 ch. 2 document 153.
  36. ↑ Law to Regulate Indians at Mashpee (June 14, 1763), in 17 Vaughan and Rosen, at 204 ch. 2 document 154.
  37. ↑ Law to Exempt Indian Landowners from Land Tax (Aug. 24, 1723), in 17 Vaughan and Rosen, at 184 ch. 2 document 138.
  38. ↑ Order to Establish a Reservation for the Housatonic Indians (March 25, 1736), in 17 Vaughan and Rosen, at 189 ch. 2 document 141.
  39. ↑ Law to Protect Indian Lands on Chappaquiddick Island (March 9, 1774), in 17 Vaughan and Rosen, at 206 ch. 2 document 156.
  40. ↑ Law to Protect Indians’ Land and Timber (June 6, 1643), in 17 Vaughan and Rosen, at 13 document 8.
  41. ↑ Law to Allow Purchase of Land from Indians (June 29, 1652), in 17 Vaughan and Rosen, at 16 ch. 1 document 15.
  42. ↑ Law to Grant Lands (July 2, 1655), in 17 Vaughan and Walker, at 19 ch. 1 document 19.
  43. ↑ Law to Validate Purchases of Land from Indians (1659), in 17 Vaughan and Rose, at 24 ch. 1 document 30.
  44. ↑ Law to Clarify Several Prohibitions (Oct. 2, 1660), in 17 Vaughan and Rose, at 25 ch. 1 document 33.
  45. ↑ Law to Restrict Colonists’ Use of Indian Lands (1663), in 17 Vaughan and Rose, at 27 ch. 1 document 37.
  46. ↑ Law to Limit Purchase of Indians’ Lands (June 3, 1668), in 17 Vaughan and Rosen, at 33 ch. 1 document 47.
  47. ↑ Law to Limit Indian Claims to Land (June 4, 1674), in 17 Vaughan and Rosen, at 42 ch. 1 document 62.
  48. ↑ Law to Prohibit Unauthorized Purchase of Indian Land (March 4, 1634), in 17 Vaughan and Rosen, at 81 ch. 2 document 12.
  49. ↑ Law to Establish Record of Land Purchases (Sept. 9, 1639), in 17 Vaughan and Rosen, at 84 ch. 2 document 20.
  50. ↑ Law Concerning Indians in Code of 1648, in 17 Vaughan and Rosen, at 102 ch. 2 document 46.
  51. ↑ Order to Regulate Land Purchases (June 1, 1687), in 17 Vaughan and Rosen, at 143 ch. 2 document 102.
  52. ↑ 52.0 52.1 Law to Establish Indians’ Title to Lands (Oct. 19, 1652), in 17 Vaughan and Rosen, at 105–6 ch. 2 document 50.
  53. ↑ Law to Confine Free Indians to Three Towns (Oct. 12, 1681), in 17 Vaughan and Rosen, at 140 ch. 2 document 97.
  54. ↑ Law to Prevent Unlicensed Transfer of Reserved Land (June 4, 1685), in 17 Vaughan and Rosen, at 141 ch. 2 document 98.
  55. ↑ Order to Regulate Purchase of Indian Lands (Feb. 3, 1641), in 17 Vaughan and Rosen, at 220 ch. 3 document 2.
  56. ↑ Law to Resettle Indians of Piscataqua Region (May 24, 1677), in 17 Vaughan and Rosen, at 222, ch. 3 document 5.
  57. ↑ Instructions for Sir Edmund Andros Concerning Indians (Sept. 12, 1686), in 17 Vaughan and Rosen, at 226 ch. 3 document 11.
  58. ↑ Law to Regulate Purchase of Indian Lands (June 1, 1687), in 17 Vaughan and Rosen, at 227 ch. 2 document 13.
  59. ↑ Law to Regulate Purchase of Land from Indians (May 2, 1719), in 17 Vaughan and Rosen, at 235 ch. 3 document 23.
  60. ↑ Law to Acquire Land from Indians in West New Jersey (May 2–15, 1683), in 17 Vaughan and Rosen, at 668 ch. 8 document 20.
  61. ↑ 61.0 61.1 Law to Require Permission to Buy Indian Lands (Sept. 8, 1683), in 17 Vaughan and Rosen, at 668 ch. 8 document 21.
  62. ↑ Indstructions for Lord Cornbury (Nov. 16, 1702), in 17 Vaughan and Rosen, at 676 ch. 8 document 31, § 37 (“You shall not permit any other Person or Persons besides the said General Proprietors, or their Agents, to Purchase any Land whatsoever from the Indians within the Limits of their Grant.”).
  63. ↑ Law to Regulate Purchase of Indian Lands (Dec. 13, 1703), in 17 Vaughan and Rosen, at 678 ch. 8 document 32.
  64. ↑ Law to Regulate Purchase of Indian Lands (Aug. 12, 1758), in 17 Vaughan and Rosen, at 710 ch. 8 document 50.
  65. ↑ Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436, 447 (1861).
  66. ↑ Law to Prevent Trespasses on Indian Lands (May 9, 1640), in 17 Vaughan and Rosen, at 493 ch. 7 document 5.
  67. ↑ Law to Regulate Purchasee of Indian Lands (July 1, 1652), in 17 Vaughan and Rosen, at 500 ch. 7 document 16.
  68. ↑ Law to Prohibit Sale of Horses to Indians and to Reconfirm Land Patents (Oct. 5-8, 1670), in 17 Vaughan and Rosen, at 525 ch. 7 document 41.
  69. ↑ Law to Regulate Purchases of Indian Lands (Oct. 23, 1684), in 17 Vaughan and Rosen, at 530 ch. 7 document 46.
  70. ↑ Law to Define Boundaries of Meherrin Lands (Nov. 27, 1729), in 16 Vaughan and Rosen, at 25 ch. 1 document 14.
  71. ↑ Law to Protect Tuscarora Lands from Encroachment (Oct. 15, 1748), in 16 Vaughan and Rosen, at 46 ch. 1 document 23.
  72. ↑ Law to Confirm Lease of Tuscarora Lands (Nov. 30, 1766), in 16 Vaughan and Rosen, at 62 ch. 1 document 36.
  73. ↑ 73.0 73.1 Law to Regulate Purchases of Land from Indians (March 10, 1683), in 17 Vaughan and Rosen, at 733 ch. 9 document 6.
  74. ↑ Law to Nullify Unauthorized Indian Land Purchases (Nov. 27, 1700), in 17 Vaughan and Rosen, at 735 ch. 9 document 9.
  75. ↑ Law to Regulate Purchases of Land from Indians (Feb. 14, 1730), in 17 Vaughan and Rosen, at 755 ch. 9 document 24.
  76. ↑ Law to Protect Land Grants from Indian Claims (June 7, 1712), in 17 Vaughan and Rosen, at 740 ch. 9 document 15.
  77. ↑ Law to Proscribe Settlement on Indian Lands (Feb. 3, 1768), in 17 Vaughan and Rosen, at 781 ch. 9 document 42.
  78. ↑ Law to Amend Prohibition against Settling on Indian Lands (Feb. 18, 1769), in 17 Vaughan and Rosen, at 785 ch. 9 document 44.
  79. ↑ Order to Oust Indians for Portsmouth (Aug. 29, 1644), in 17 Vaughan and Rosen, at 417 ch. 6 document 11; Agreement to Limit Indian Use of Aquidneck Island (July 7, 1640), in 17 Vaughan and Rosen, at 414 ch. 6 document 5.
  80. ↑ Law to Curb Unauthorized Indian Presence on Islands (Oct. 27, 1676), in 17 Vaughan and Rosen, at 440 ch. 6 document 45; Law to Curtail Indians on Islands (Aug. 6, 1676), in 17 Vaughan and Rosen, at 439 ch. 6 document 45; Law to Relocate Certain Indians (June 30, 1676), in 17 Vaughan and Rosen, at 438 ch. 6 document 42.
  81. ↑ Law to Regulate Purchase of Indian Land (Nov. 4, 1651), in 17 Vaughan and Rosen, at 420 ch. 6 document 17.
  82. ↑ Law to Prohibit Unauthorized Land Purchases (Nov. 2, 1658), in 17 Vaughan and Rosen, at 423 ch. 6 document 24.
  83. ↑ Law to Prevent Illegal Purchases of Indian Land (Oct. 25, 1727), in 17 Vaughan and Rosen, at 459 ch. 6 document 71.
  84. ↑ Law to Repeal Restrictions on Indians’ Sale of Lands (Aug. 20, 1759), in 17 Vaughan and Rosen, at 466 ch. 6 document 81.
  85. ↑ Law to Prohibit Narragansett Sachem from Selling Land (June 13, 1763), in 17 Vaughan and Rosen, at 467 ch. 6 document 82.
  86. ↑ Commissioners’ Order to Place Narragansett Territory under Royal Protection (July 8, 1663), in 17 Vaughan and Rosen, at 427 ch. 6 document 28.
  87. ↑ Law to Acquire Lands in Narragansett Country (April 2, 1672), in 17 Vaughan and Rosen, at 433 ch. 6 document 35.
  88. ↑ Law to Void Purchases of Land from Ninigret (May 6, 1713), in 17 Vaughan and Rosen, at 454 ch. 6 document 64; Law to Prevent Encroachment of Narragansett Country (March 5, 1696), in 17 Vaughan and Rosen, at 444 ch. 6 document 51.
  89. ↑ Law to Permit Ninigret to Lease Land (June 17, 1718), in 17 Vaughan and Rosen, at 457 ch. 6 document 68.
  90. ↑ Law to Extend Leases of Ninigret’s Lands (Dec. 19, 1738), in 17 Vaughan and Rosen, at 462 ch. 6 document 76; Law to Regulate Leasing of Ninigret’s Lands (Dec. 19, 1738), in 17 Vaughan and Rosen, at 461 ch. 6 document 75.
  91. ↑ Law to Invest Palawanee Island in Cusaboe Indians (Dec. 12, 1712), in 16 Vaughan and Rosen, at 170 ch. 2 document 30.
  92. ↑ Law to Appropriate Yamasee Lands (June 13, 1716), in 16 Vaughan and Rosen, at 183 ch. 2 document 37.
  93. ↑ Law to Prevent Purchase of Indian Lands (Dec. 18, 1739), in 16 Vaughan and Rosen, at 295 ch.2 document 75.
  94. ↑ Law to Allow Settlement in Indian Territory (Oct. 1648), in 15 Vaughan and Rosen, at 37 ch. 1 document 41; Law to Remove Settlers from Indian Lands (Nov. 1647), in 15 Vaughan and Rosen, at 36 ch. 1 document 39.
  95. ↑ Law to Establish Indian Reservations (Oct. 10, 1649), in 15 Vaughan and Rosen, at 40 ch. 1 document 46.
  96. ↑ Law to Confirm Totopotomoi’s Lands (July 5, 1653), in 15 Vaughan and Rosen, at 44 ch. 1 document 51.
  97. ↑ Law to Confirm Grant of Land from Wiccomoccos (March 13, 1659), in 15 Vaughan and Rosen, at 53 ch. 1 document 66.
  98. ↑ A Law to Protect Accomack Lands (Oct. 11, 1660), in 15 Vaughan and Rosen, at 54 ch. 1 document 68.
  99. ↑ Order to Confirm Chiskiack Lands and Guns (March 28, 1662), in 15 Vaughan and Rosen, at 57 ch. 1 document 74; Law to Confirm Chickaominy Lands (March 23, 1661), in 15 Vaughan and Rosen, at 57 ch. 1 document 73.
  100. ↑ Law to Christianize Indians and Regulate Land Sales (March 10, 1656), in 15 Vaughan and Rosen, at 47 ch. 1 document 57; Law to Protect Indians’ Land (Nov. 25, 1652), in 15 Vaughan and Rosen, at 42 ch. Document 50; Law to Preserve Indian Territory (Oct. 10, 1649), in 15 Vaughan and Rosen, at 41 ch. 1 document 47.
  101. ↑ Law to Prevent Dispossession of Indians (Feb. 27, 1752), in 15 Vaughan and Rosen, at 195 ch. 1 document 170.
  102. ↑ Law to Allow Northampton County to Purchase Indian Lands (Nov. 20, 1654), in 15 Vaughan and Rosen, at 46 ch. 1 document 55.
  103. ↑ Law to Determine Title to Certain Lands (Oct. 11, 1660), in 15 Vaughan and Rosen, at 55 ch. 1 document 70; Law to Clear Title to Lands from Wiccomocos (Oct. 11, 1660), in 15 Vaughan and Rosen, at 55 ch. 1 document 69.
  104. ↑ Law to Appropriate Deserted Indian Lands (June 5, 1676), in 15 Vaughan and Rosen, at 80 ch. 1 document 100.
  105. ↑ Law to Punish Nanzaticos and Establish Boundaries with Other Indians (May 12, 1705), in 15 Vaughan and Rosen, at 101 ch. 1 document 123.
  106. ↑ Law to Allow Nottoways to Lease Their Lands (Feb. 10, 1772), in 15 Vaughan and Rosen, a 226 ch. 1 document 196; Law to Enable Nottoways to Sell Lands (March 25, 1756), in 15 Vaughan and Rosen, at 201 ch. 1 document 176; Law to Allow Nottoways to Sell Land (Dec. 17, 1748), in 15 Vaughan and Rosen, at 191 ch. 1 document 167; Law to Allow Pamunkeys to Sell Land (Dec. 17, 1748), in 15 Vaughan and Rosen, at 190, ch. 1 document 166; Law to Allow Nottoways and Nansemonds to Sell Additional Lands (Sept. 1744), in 15 Vaughan and Rosen, at 168 ch. 1 document 157; Law to Allow Nottoway Indians to Sell Lands (Aug. 2, 1734), in 15 Vaughan and Rosen, at 162 ch. 1 document 153; Law to Confirm Sale of Pamunkey Lands (June 20, 1723), in 15 Vaughan and Rosen, at 153 ch. 1 document 147.

References

Primary
Secondary
  • Emerson W. Baker, "A Scratch with a Bear's Paw": Anglo-Indian Land Deeds in Early Maine, 36 Ethnohistory 235 (1989).
  • Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2005).
  • E. Edwards Beardsley, The Mohegan Land Controversy, 3 New Haven Hist. Soc. Papers 205 (1882).
  • Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buff. L. Rev. 637 (1978).
  • Charles E. Eisinger, The Puritans' Justification for Taking the Land, 84 Essex Inst. Hist. Collections 131 (1948).
  • Warner F. Gookin, Indian Deeds on the Vinyard, 13 Mass. Archeological Soc. Bull. 6 (1952).
  • Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (1975).
  • Yasuhide Kawashima, Puritan Justice and the Indian: White Man's Law in Massachusetts 1630-1763 (1986).
  • Yasuhide Kawashima, Jurisdiction of the Colonial Courts over the Indian in Massachusetts 1630-1763, 42 New. Eng. Q. 532 (1969).
  • Yasuhide Kawashima, Legal Origins of the Indian Reservation in Colonial Massachusetts, 13 Am. J. Legal Hist. 42 (1969).
  • Lyle Koehler, Red-White Power Relations and Justice in the Courts of Seventeenth-Century New England, 3 Am. Indian Culture & Res. J. 1 (1979).
  • Kenneth M. Morrison, The Bias of Colonial Law: English Paranoia and the Abenaki Arena of King Philip's War, 1675–1678, 53 New. Eng. Q. 363 (1980).
  • James P. Ronda, Red and White at the Bench: Indians and the Law in Plymouth Colony 1620-1691, 110 Essex Inst. Hist. Collections 200 (1974).
  • James Warren Springer, American Indians and the Law of Real Property in Colonial New England, 30 Am. J. Legal Hist. 25 (1986).
  • Charles Hervey Townshend, The Quinnipiack Indians and Their Reservation, 6 New Haven Hist. Soc. Papers 151 (1900).
  • Henry Andrew Wright, The Technique of Seventeenth Century Indian Land Purchases, 77 Essex Inst. Hist. Collections 185 (1941).

Further reading

  • Melville Egleston, The Land System of the New England Colonies, in Studies in Historical and Political Science (1886).
  • George Adrian Washburne, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684–1776, in Studies in History, Economics & Public Law (1923).
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