"Indian Title"

 COLONIAL VIEWS ON STATUS OF TRIBES AS "NATIONS"

(PRIMARY SOURCE for the following: Joseph Story's, Commentaries on the Constitution of the United States; With A Preliminary Review of the Constitutional History of the United States, Before the Adoption of the Constitution, Volume I, Book I, Chapter I and XVI, BOSTON: HILLIARD, GRAY AND COMPANY. CAMBRIDGE : BROWN, SHATTUCK, AND CO.; 1833.)

Justice Story states:

"As infidels, heathen, and savages, they [Indian tribes] were not allowed to possess the prerogatives  belonging to absolute, sovereign and independent nations*... The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals. There is not a single grant from the British crown from the earliest grant of Elizabeth down to the latest of George the Second, that affects to look to any title, except that founded on discovery."

* The Indians were considered "as a people not having any regular laws or any organized government, but as mere wandering tribes." [Vattel, B.1, ch 18, #167; 208, 209; 3 Ken's Comm. 312, 313.]

TRIBAL POSSESSORY AND OCCUPANCY RIGHTS TO LAND

Under the law recognized among European nations, a Christian sovereign was the titled owner to land in the wilderness that was "discovered" in his/her name. It was deemed a right exclusively belonging to the European government in its sovereign capacity to "extinguish" the "Indian title" or "Indian right of occupancy" and dispose of the land according to its own sovereign will. Land could only pass into private hands directly or indirectly by charter or grant from the Crown.

European sovereigns came to exclude persons from any right to acquire the soil by any direct grant from the natives. (For instance, the government of the Virginia Colony outlawed direct Indian land purchases in 1658, and in 1662 declared all such transactions void.)

The indigenous peoples or so-called "heathen" on the land ceased to be its legal owners and became merely "occupants." If at any time thereafter, Indians made a cession of land to an official representative of the sovereign, actually, all they were ceding was the right of occupancy of the land and not the legal title, which had already vested in the Christian sovereign.

In effect, the system developed whereby the European sovereigns exercised the right to grant legal title to the soil by charter and letters patent, even though it was still arguably in the possession of natives. The European title so granted was universally considered to convey a sufficient title in the soil to the grantees in perfect dominion, or a transfer of "plenum et utile dominium."