69 BULR 329 Page 1 (Cite as: 69 B.U. L. Rev. 329) Boston

Transcription

69 BULR 329
(Cite as: 69 B.U. L. Rev. 329)
Page 1
Boston University Law Review
March, 1989
*329 THE PROCLAMATION OF 1763: COLONIAL PRELUDE TO TWO CENTURIES OF FEDERALSTATE CONFLICT OVER THE MANAGEMENT OF INDIAN AFFAIRS [FNp]
Robert N. Clinton [FN227]
Copyright 1989 by the Trustees of Boston University; Robert N. Clinton.
History is a cyclic poem written by Time upon the memories of man.
--PERCY BYSSHE SHELLEY [FN1]
On October 7, 1763--225 years ago--the British colonial government issued the famous Proclamation of 1763.
[FN2] This important document restructured the management of Indian affairs in the original thirteen states, Canada,
and Florida. Additionally, the Proclamation established governmental structures for newly acquired British
territories in Canada, East and West Florida, and Grenada, which were secured by cession from France following
Pontiac's Rebellion and the end of the French-Indian wars. In particular, the Proclamation directly addressed three
issues of colonial Indian policy, issues that continued to plague United States Indian policy after the Revolution:
Indian property rights, tribal separatism and autonomy, and the primacy of the central government over the colonies
in the management of Indian policy. Indeed, more than any other document or single historical event during the
colonial period, the Proclamation of 1763 embodied an enlightened colonial policy that sought to facilitate both
Native American trade and colonial expansion while recognizing Indian rights in the land. Even though the colonies,
and later the United States, failed to realize and preserve Indian rights, the Proclamation and its aftermath retain
great historical significance: they established the basic framework for conceptualizing *330 and structuring the
Indian policy of the United States following its break with Great Britain.
In Canada, the Proclamation maintains legal significance in the resolution of legal claims of Canadian Indians; it is
a legally enforceable document. [FN3] In contrast, the document has been virtually ignored in the Native American
law of the United States, especially in the caselaw of this century. The sharp legal break with Great Britain
occasioned by the Revolution and the contempt with which revolutionary Americans viewed King George III, the
Proclamation's originator, partly explain the document's absence from American caselaw. Still, understanding the
historical events that produced the Proclamation of 1763 and the British Indian policies it inspired offers great
insight into the two centuries of federal-state conflict over the management of Native American policy that followed
the Revolution, conflict that continues to plague Native American policy to this day.
Authorities sometimes present or discuss Indian law and the history of Indian policy as if they first emerged only
after the Revolutionary War or the signing of the Declaration of Independence in 1776. Some credit Chief Justice
Marshall with inventing or first articulating legal doctrines of Indian tribal sovereignty or Indian land rights. [FN4]
Yet, regulation of contact between Indians and the Euro-American settlers and their governments began nearly two
hundred years before the Revolution. The Proclamation of 1763 represented an important milestone in the
development of this regulation and policy.
This Article examines the history and influence of the Proclamation in colonial and modern American law and
demonstrates the failure of federal and state governments to learn from the teachings of this past. Parts I and II first
resurrect, describe, and survey the political and diplomatic history surrounding the Proclamation of 1763, exploring
the gradual British disenchantment with colonial management of Indian affairs. Next, Part III analyzes the
Proclamation in detail, emphasizing its significance in the restructuring of British colonial machinery for managing
Indian affairs and *331 protecting Indian rights to land and resources. The last Part of this Article examines the
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
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legacy of the colonial period in the development of modern Native American law, highlighting how themes first
played out during the colonial period, and especially in the Proclamation of 1763, were repeatedly replayed in later
Indian policy decisions. The Article concludes with a simple but urgent recommendation: federal and state
governments as well as courts must learn from this difficult history if they are to begin to conduct themselves
respectfully in the management of Indian affairs.
I. COLONIAL MANAGEMENT OF INDIAN AFFAIRS BEFORE 1763
Prior to the issuance of the Proclamation of 1763, local colonial governments, often led by the colonial governor,
primarily managed diplomatic, military, and economic relations with North American Indian tribes. During most of
the seventeenth and the first half of the eighteenth centuries, then, the local European settlers, who had the most to
gain by striking unfair or even fraudulent business arrangements with surrounding Indian tribes, retained primary
responsibility for negotiating and securing land cessions from the tribes. These land cessions were essential to the
growing Euro-American colonial settlements and the regulation of the lucrative trade these settlers undertook with
Indian tribes. But, despite the strong self-interest of colonial governments, British law sought to assure the
indigenous Native American occupants of North America a continued right of occupancy in their soil, often called
"aboriginal title," "original Indian," or simply "Indian title." [FN5] *332 This aboriginal title was subject only to the
British sovereign's right of first purchase or, as it sometimes was called, the sovereign's naked fee title. [FN6] *333
Yet protection of aboriginal title was far from complete, for title could also be extinguished under British law and
the laws of most other European colonial powers through actual conquest--presumably pursuant to a defensive,
legitimate war--or through the voluntary abandonment of the land by its aboriginal occupants. [FN7] Self- interested
local colonial officials, however, often interpreted and enforced such legal rules in a fashion that severely
constrained the scope of this right.
Puritan leaders in the Massachusetts Bay Colony, for example, asserted that the Indians' right of continued
occupancy--their aboriginal title--only applied to lands that the tribes actively and regularly cultivated. [FN8] These
officials considered other Indian lands, such as vital hunting or food gathering areas exclusively held and used by a
tribe for subsistence, to be nothing more than vacant waste, subject to immediate disposition by colonial authorities
without the need for negotiating land cessions from the tribe. [FN9] For the most part, the colonial authorities in
Massachusetts Bay were dealing with Indians of Algonquin stock who relied on both agriculture and seasonal
hunting for substinence, but whose villages were comparatively less stable than those of their brothers and sisters in
colonies farther south. [FN10] Thus, narrow Puritan interpretation of Indian land rights deprived many New
England tribes of access to habitat areas needed for economic subsistence. Not surprisingly, such intrusions on
Native American economies and rights produced significant adverse reactions from the Indian tribes and their
leaders (called sachems in colonial New England).
Many of the famous seventeenth-century Indian wars and depredations in New England resulted from the greed of
colonial officials in their implementation, or misapplication, of a body of legal doctrine designed to protect Indian
resources and prerogatives. In particular, King Philip's War and other Indian uprisings around 1675 were fueled by
what the indigenous populations saw as unjustified Euro-American intrusions into hunting areas and other domains
traditionally used by the tribes. [FN11] Of course, local colonial authorities capitalized on these uprisings and used
them to justify further abrogation and abridgement of Native American resources and autonomy. The establishment
of the so-called "praying Indian towns" in the Massachusetts *334 Bay Colony, Virginia's special feudal political
relations with so-called "tributary tribes" (mostly remnants of the Powhatan Confederacy, including the Pamunkey),
and the special trust relations in other New England colonies for the Pequot and Mohegan all represented the EuroAmerican spoils of such conflicts. [FN12]
While management of British-Indian relations was left primarily to local colonial authorities, the British Crown
always reserved the right of oversight. Only on rare occasions during the first century of colonial experience did
London actually exercise such authority, and, when it did so, it was usually in response to petitions or protests from
Indian leaders. One of the earliest instances of active intervention by the Crown came in 1664, when King Charles II
appointed a royal commission to investigate complaints he had received from the Indians about colonial
mistreatment of their tribes. The following year, after due investigation, the royal commissioners instructed colonial
authorities that they could not properly take Indian land by conquest unless that conquest was just (i.e., defensive)
and the land was within the scope of the colonial charter. [FN13] The royal commissioners further advised colonial
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authorities that confiscation of Indian hunting lands and other uncultivated areas as vacant waste was illegal,
because "no doubt the country is [the Indians'] till they give it or sell it, though it be not improoued [[[sic]." [FN14]
Despite the efforts of these royal commissions, local colonial management of Indian affairs was floundering by the
early eighteenth century, and increased supervision by London seemed necessary. Nevertheless, the changes that
culminated in the Proclamation of 1763 came quite gradually. The first major eighteenth- century challenge to local
colonial control of *335 relations with Indian tribes occurred in what one commentator has called "the greatest cause
ever heard at the Council Board." [FN15] Mohegan Indians v. Connecticut, [FN16] a very important yet seldom
cited case, was perhaps the first formal litigation of North American Indian rights. In 1703, Oweneco, the son of the
great Mohegan leader Uncas, petitioned the Queen in Council, claiming that colonial land grants by Connecticut
officials violated the Mohegans' aboriginal title. The land dispute turned on the interpretation of a series of treaties
and agreements negotiated between 1659 and 1681. Uncas had granted some form of title over all of the Mohegan
lands to Major John Mason, an officer of the colony. Uncas then had a smaller tract of land entailed by the colony
for the benefit of the tribe but then relinquished tribal title again to the colony in 1681 following an agreement that
prohibited tribal land grants to anyone without the colony's consent. The Mohegans thought that the effect of the
1681 agreement was simply to grant the colony of Connecticut a right of first purchase in the land--a quite
reasonable construction in light of the consent proviso. The colony thought otherwise, however, and began parceling
the land out for settlement. The Mohegans petitioned the Crown for assistance. The case was heard thereafter by
royal commissions on a somewhat less than active basis for almost seventy years between 1703 and 1773. While the
Mohegans ultimately lost title to most of the land they claimed outside of areas actually occupied by the tribe, the
case established two basic principles of Indian law: (1) the central government (then in the form of the British
Crown government in London), rather than local colonial governments, ultimately controlled Indian policy; and (2)
the Indian tribes were separate sovereign nations not controlled by local laws of the colony.
Perhaps the most important skirmish in this protracted litigation occurred in 1743, when non-Indian tenants in
possession of Mohegan lands disputed the jurisdiction of the royal commission appointed to hear the case. They
claimed that such royal intervention in colonial affairs violated the Connecticut colonial charter and the laws of the
colony. In short, they basically were arguing that the Mohegans were subject to Connecticut laws and governance
and that the resolution of their land claims should take place in colonial courts rather than through royal
commissions. The royal commission *336 rejected this attack on its jurisdiction: Commissioner Daniel Horsmanden
of New York held, over one dissent, that the Indian tribes within colonial boundaries were distinct peoples subject
neither to the laws of England nor of colonial courts. He argued that a land dispute between such a distinct people
and English subjects must be determined by the law of nature and of nations and that hearing such international
disputes was the province of royal commissions, not of local courts. [FN17] The tribes and their members owed no
allegience to local law or local courts.
The Mohegan case initiated increased centralization of oversight and control of colonial Indian regulation by the
British government. With the exception of the Royal Commission of Charles II, the British government generally
had left authorities on their own in the regulation of Indian relations during the seventeenth and early eighteenth
centuries. While instructions to colonial governors sometimes contained general directives requiring the governors
to assure peaceful relations with the Indians, [FN18] formation and implementation of Indian policy remained
primarily with colonial authorities until 1723.
Of course, a steady flow of communications kept London informed of the Indian problems in colonial America.
Until 1723, however, this flow of communications generally was a one-way street--from the North American
colonies to London. [FN19] The role of the British government during this period was limited to providing financial
support for the trade and diplomatic initiatives, gifts, and military defense preparations undertaken by colonial
authorities. [FN20]
*337 After 1723, however, the Board of Trade began to assume a more active role in the regulation of Indian
affairs. [FN21] Competition with France in the North and West and, to a lesser extent, Spain in the South for trade,
land, and influence on the North American continent heightened British concern over Indian matters. The battle with
the French for influence, trade, and control over the Indians was particularly evident in New York, where the Five
(later Six) Nations confederacy of the Iroquois, known as the Hodenosaunee, occupied pivotal locations between
French and British settlements and controlled access to trade routes with tribes to the West. [FN22]
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*338 Given this French threat to British interests in North America, coordination of colonial Indian policy became
increasingly essential to Great Britain. Yet, by 1722, disputes had broken out among various colonial authorities
over control of Indian matters. In particular, Governor Burnet of New York insisted on playing a preeminent role in
managing Indian affairs. During late August and early September of 1722, the governors of Virginia, Pennsylvania,
and New York met with the Iroquois to discuss a variety of issues, including French influence. [FN23] At this
conference, Virginia entered into a treaty with the Iroquois which demarcated the Potomac River and the crest of the
Appalachians as a boundary between the Iroquois on the one hand and Virginia and its tributary tribes on the other.
[FN24] The Massachusetts Bay Colony also desired to join the conference in order to secure the cooperation of the
Iroquois in defending that colony against the "Eastern Indians"--eastern Algonquins under the influence of the
French. New York colonial authorities, however, insisted that New York regulate all affairs with the Iroquois
Confederation. They demanded that the government of Massachusetts first secure approval of the governor and
Council of New York for the points which the Boston government intended to propose. While the governors of
Virginia and Pennsylvania accepted this procedure, Boston balked and was excluded from the conference.
Nevertheless, Governor Burnet of New York placed before the Iroquois the request of the Boston authorities for
intervention against the Eastern Indians.
Perhaps responding to this quarreling among the colonies, the Board of Trade wrote to Governor Burnet on July 9,
1723, indicating satisfaction at the outcome of the 1722 conference at Albany but gently encouraging more
cooperation among the colonies:
*339 [W]e congratulate you upon having been so useful to the Neighbouring Provinces upon that occasion. It is
certain that nothing can make the British intrest in America more formidable to their Neighbours than a perfect
Union among themselves, and we hope that the Govrs of all his Majesty's Plantations abroad upon all occasions
endeavor to convince as well the Indians as their European Neighbours that they have but one King to obey and one
common interest to pursue. [FN25]
During the fall of 1724, the governments of New York and Boston cooperated in a conference at Albany with the
Iroquois Confederation to renew Massachusetts' invitation for the Iroquois to intercede for Boston against the
eastern Algonquins. [FN26] The seeds for greater Crown oversight of Indian affairs, however, had already been
sown. In 1721, the Board of Trade acknowledged the need for increased cooperation among the colonies in a
London report prepared for the King which addressed the state of the colonies and plantations in North America.
[FN27] Stressing the importance of a growing and organized trade with the Indians to combat French influence, the
report recommended greater coordination and communication between the colonies with respect to Indian affairs:
And that all the Governors of your Majesty's plantations may be informed of the state of every other Government,
with respect to the Indians, it will be necessary, that every governor upon his making any treaty with any Indian
nation, should immediately communicate the same to all other your Majesty's Governors upon the continent. [FN28]
Ironically, the first major intervention by the Crown in the regulation of Indian affairs during the eighteenth
century frustrated New York colonial efforts to combat French influence among the Iroquois Confederation. On
November 19, 1720, the New York legislature, in an effort to end the growing French trade with the Iroquois and the
Indians to the west, enacted a statute that forbade trade with the French in goods intended for the Indian *340 trade.
[FN29] Though originally of limited duration, this act was repeatedly revived and modified during the following
decade. [FN30] These statutes apparently affected the commercial interests of a number of London merchants who
protested these laws by petitioning the Crown in 1724. [FN31] The merchants complained that the New York law
resulted in a decrease in both British exports to New York and fur imports from the colony. They also suggested that
these laws actually had not decreased French trade with the Indians, but instead forced the French in Canada to
secure their trade goods directly from France or Holland, all to the disadvantage of English merchants. Governor
Burnet of New York countered that these laws had given "great advantage" to the British fur trade; he explained that
western tribes now came to Albany or to British traders with the Iroquois despite French military efforts to block the
trade routes to British traders in New York. [FN32]
In response to the inquiry from the Board of Trade regarding these statutes, Governor Burnet sent a lengthy
memorandum from Cadwallader Colden, the Surveyor General of New York, which detailed the status of the fur
trade in North America and the history of relations between the French and the (now) Six Nations Iroquois
Confederation. [FN33] The report concluded that the French traders would be put at a serious commercial
disadvantage if the flow of trade they had enjoyed with Albany were stopped. [FN34] The New York
Commissioners of Indian Affairs also petitioned the Board to support New York's efforts to suppress the flow of
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Indian trade goods to the French. [FN35]
During the spring of 1725, the Board of Trade held hearings on the New York laws forbidding sale of Indian trade
goods to the French, principally receiving testimony from the London merchants. [FN36] The Board also heard
arguments and received documentary evidence from the New York agent, who emphasized the importance of these
laws to the commerce and security of New York. [FN37] Despite finding that both the importation of furs to Great
Britain and the exportation of British goods to New York had risen after passage of the laws in question, the Board
of Trade, while commending New *341 York for seeking to expand trade with the Indians, recommended, on June
16, 1725 that the affected laws be disapproved and repealed. [FN38] Concern that the laws had caused an increase in
the price of furs in Great Britain prompted the Board's decision. It finally recommended disapproval because the
affected statutes required, upon penalty, an oath of compliance, thereby compelling self-incrimination. [FN39]
Nevertheless, Governor Burnet continued to argue the importance and efficiency of such trade legislation. [FN40]
The Board's recommendation was not immediately implemented, and between 1725 and 1728 the New York
legislature continued to enact legislation that proscribed trade with the French in Indian trade goods. [FN41] On
November 19, 1729, however, the Board of Trade noted that this new legislation was subject to the same objections
previously raised and again recommended its repeal. [FN42] While no council order was received implementing this
recommendation, the intensive review given these colonial Indian regulations marked the beginning of an altered
relationship between colonial authorities and the Crown in the management of Indian affairs.
After 1730, the Board of Trade became increasingly active in Indian affairs, suggesting that colonial governors
pursue specific policies in their relations with the Indian tribes. The Crown also interjected itself more frequently
into the resolution of land disputes with the Indians. In New York, for example, the British government became
centrally involved from 1733 to 1736 in frustrating colonial efforts to divest the Mohawks of the Mohawk Flatts
River Valley area. This important dispute and other Indian grievances over land produced considerable Indian
unrest. [FN43] In 1738, for example, the Iroquois broke up a treaty conference with the Virginia *342 lieutenant
governor, the Cherokee, and the Catawba by attacking the Catawba and murdering eleven English frontier settlers.
The Board of Trade immediately wrote Lieutenant Governor Clarke of New York recommending, "in the strongest
terms," an appropriate response by New York colonial officials. [FN44] Specifically, the Board of Trade urged New
York colonial officials to obtain satisfaction for the murders of the English subjects, to urge the Iroquois "to live in
good Intelligence and Correspondence with all the rest of the Indian Clans in America dependent upon the British
Government," and to restrain the Iroquois within the boundary established in their 1722 treaty with Virginia. [FN45]
In 1739, the Board of Trade recommended to the Privy Council that the Crown continue the policy previously
formulated by the governors of New York of securing the loyalty of the Iroquois by making presents to them.
[FN46] No longer was the flow of communications concerning Indian affairs a one-way street running from the
colonies to London; the British government had begun to coordinate and direct colonial Indian policy with
increasing frequency and force.
As a result of the Board's recommendation to respond to the Iroquois' concerns, Lieutenant Governor Clarke of
New York undertook to assure peaceful relations among the tribes subject to British protection. On August 16, 1740,
he met with the Iroquois and secured their agreement to remain at peace and to treat the other tribes to the south and
west as brothers. [FN47] Building on these negotiations, Lieutenant Governor Bull of Virginia procured the assent
of the Cherokee and Catawba Indians to a general peace during the spring of 1741. Governor Oglethorpe of Georgia
indicated that the Creeks also were favorably disposed toward the plan and already had reached such a peace with
the Cherokees. [FN48]
During this period, Clarke also advised Governor Oglethorpe and the Creeks of intelligence he had received
suggesting an impending French attack, thereby averting military confrontation. [FN49] But even with these efforts
at coordinating Indian affairs among the colonies, French influence grew and frontier depredations continued. When
an attack occurred on the Virginia frontier in 1742, the Virginia governor, to the distress of New York authorities,
immediately accused the Six Nations Iroquois Confederation. [FN50] These tribes later denied any involvement in
the affair. [FN51]
*343 In 1744, France declared war on Great Britain. [FN52] King George's War (1744-48) tested the viability of
continued colonial management of Indian affairs. On July 25, 1745, Governor Clinton of New York complained to
the Board of Trade that the New York Assembly had not provided funds either for presents to the Iroquois or for an
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annual conference with them, both of which he deemed essential to preserving their loyalty. [FN53] The Assembly
ultimately supplied the requested funds, and the conference was held on October 4-12, 1745, with commissioners
from Massachusetts Bay, Connecticut, and Pennsylvania also in attendance. [FN54] While colonial authorities urged
the Iroquois to join the English and declare war on the French and their Indian allies, the Iroquois declined, citing
the need to first apprise their friends among the western Indian tribes of the situation. Their complaints about land
frauds and their fears of English designs to destroy them were evident throughout the conference, indicating
substantial distrust of the colonial officials. [FN55] After the Indians refused to join the English war effort, the
Massachusetts treaty commissioners expressed their dissatisfaction with the Indian answer and accused the people of
Albany of discouraging the Indians from going to war. [FN56] Governor Clinton protested this show of disunity
among the colonies. [FN57] When the Massachusetts commissioners learned of another attack on the New England
frontier on October 14, 1745, they demanded that Governor Clinton instruct the Iroquois to go to war immediately.
After consulting with the four members of the New York Council who were present, Governor Clinton demurred,
protesting that the other colonies only seemed concerned with the Iroquois during times of war. In addition to
feeling they had been more vigilant than other colonial governments in maintaining good relations with the Indians,
the New York authorities apparently feared that a war effort by the Iroquois on the New England frontier would
leave the New York settlements vulnerable to attack. [FN58]
Despite colonial efforts, the Iroquois Confederation persisted in their neutrality during most of King George's War,
until at least 1746. In that year, Governor Clinton, perceiving that the Indian commissioners at Albany generated
substantial Indian distrust, recommended that Philip Livingston be removed from the office of Secretary of Indian
Affairs. [FN59] When elements of the Iroquois Confederation finally entered the fray against the French, *344
Governor Clinton appointed Colonel William Johnson, a man whom the Indians trusted, as manager of the Indian
war effort. [FN60] Colonial management of Indian relations during the war, however, remained disunited. Bitter
quarrels erupted in New York between the Assembly and Governor Clinton, involving, in part, the management of
Indian affairs and the costs of the Governor's policies. [FN61] Furthermore, the Albany commissioners refused to
cooperate with Governor Clinton, apparently preferring Indian neutrality in the war effort. [FN62]
II. THE ALBANY CONGRESS: PRELUDE TO THE PROCLAMATION OF 1763
By the end of hostilities in 1748, it was clear that the colonial machinery for managing Indian affairs in New York
and elsewhere was divided and inadequate. In 1750, Governor Clinton invited all colonial governors to a conference
at Albany with the Six Nations Iroquois Confederation and other Indians ostensibly allied with the British interest.
[FN63] The conference finally convened on July 6, 1751. [FN64] Representatives from New York, Massachusetts
Bay, Connecticut, South Carolina, the Iroquois, and the Catawbas concluded the conference in a general peace
among those parties in attendance. [FN65]
The necessity for unity within each colony and coordination among them in the regulation of Indian affairs became
painfully clear during King George's War. In 1751, Archibald Kennedy, a member of the Council of the colony of
New York, noted that "the preservation of the whole continent, depends upon a proper regulation of the Six Nations"
and recommended that the management of Indian affairs be taken away from the commissioners at Albany and
placed under the direction of a single superintendent of Indian affairs. [FN66] The groundwork for a structural
change in the management of Indian affairs was laid at a conference held at Albany during the summer of 1753
when Hendrick, a Mohawk leader, threatened to break the covenant *345 chain of friendship that allied the Iroquois
Confederation to the colony of New York. [FN67] The Mohawks advanced a host of complaints that centered on
land frauds and illegal encroachments perpetrated against the Indians. Gaining no immediate satisfaction, they left
the conference declaring their alliance with the British ended. [FN68] When news of this conference reached the
Board of Trade, the Board immediately directed the newly-appointed governor to convene a new conference with
the Indians and representatives of the other colonies. [FN69] This directive from the Board of Trade set the stage
for the famous Albany Congress of 1754, which fueled American ideas of federated constitutional government
modeled after and designed to confront the Six Nations Iroquois Confederation.
Initially, efforts to convene the Albany conference met with little success in other colonies. The Board of Trade
wrote Lieutenant Governor DeLancey and expressed
surprize and concern that after the proper arguments which you made use of to induce the neighbouring Colonys
to concur in the treaty with the Six Nations any of these Colonys should at this conjuncture have declined joining in
a measure so apparently for the general interest and security of the whole . . . . [FN70]
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Stressing the importance of coordination, the Lords continued:
It seems to be the opinion and is the language of almost every Colony that a general Union of strength and interest
is become absolutely necessary nothing could have facilitated such a measure more than a general Congress of
Commissioners from each Colony at Albany upon this occasion some plan might possibly have then been struck out
by these Commissioners for effecting such an Union which can never be brought about in the separate and divided
state of the Colonys without some general Congress. [FN71]
*346 The Albany conference finally convened on June 19, 1754, with representatives of New York, New
Hampshire, Massachusetts Bay, Connecticut, Rhode Island, Maryland, and Pennsylvania in attendance. [FN72] The
commissioners first proceeded to discuss among themselves the proposals they would make to the Indians. In
addition to preparing the speeches to be delivered to the Indians, the commissioners deliberated the possibility of a
union of the colonies for better management of domestic affairs including critical questions of relations with Indian
tribes. Initially, they anticipated that such a plan of union would be adopted by Act of Parliament. [FN73] On July
10, 1754, Benjamin Franklin reported a draft Plan of a Union. [FN74] After detailing the general government's
procedure and structure, which included a "President General" of the Union, Franklin's plan granted the central
government power in the governance of Indian affairs:
That the President General with the advice of the Grand Council, hold or direct all Indian Treaties in which the
general interest or welfare of the Colonys may be concerned; and make peace or declare War with the Indian
Nations. That they make such Laws as they judge necessary for the regulating all Indian Trade. That they make all
purchases from Indians for the Crown, of lands [now] not within the bounds of particular Colonies, or that shall not
be within their bounds when some of them are reduced to more convenient dimensions. That they make new
settlements on such purchases by granting Lands, [in the King's name] reserving a Quit rent to the Crown, for the
use of the General Treasury. [FN75]
The commissioners ultimately agreed to bring the plan before their respective governments for approval. [FN76]
In addition to formulating this Plan of a Union, the Albany Congress also approved a status report, or
"Representation to the Crown," regarding the state of Indian affairs in the colonies. [FN77] Complaining that
relations with the Six Nations Iroquois Confederation had been neglected, the report noted that the management of
affairs tended to be more for private gain than public advantage. The report cited the illegal sale of rum in Indian
country, land frauds, and inadequate consideration for land sales as evidence of misdirection. [FN78] The Albany
Congress recommended a number of measures to solve these problems, including appointment of agents who would
reside among the Indians and who had no involvement in the Indian trade. These agents *347 could presumably
manage trade to serve the public good rather than private gain. The Congress also recommended several
improvements in the handling of Indian land claims. First, only the colonial government wherein the lands were
situated would be permitted to purchase Indian lands. Such purchases would occur only at public councils with the
Indians. In addition, all illegal land transactions would be voided and all colonial owners of large unsettled tracts of
land would be compelled to settle them in reasonable time upon pain of forfeiture. Finally, Indian complaints of land
frauds were to be heard and resulting injuries promptly redressed. [FN79]
Representatives of the Six Nations Iroquois Confederation, the Scaakticook, and the Stockbridge (or River) Indians
were present at the Albany Conference. Discussions with the Indians focused on land disputes, French influence,
and proscription of the sale of rum in Indian country. [FN80] The Six Nations especially were insistent that Colonel
William Johnson, the former Secretary of Indian Affairs, resume that position. Lieutenant Governor DeLancey
reported to the Board of Trade that the Albany Conference had renewed the friendship of the Indians and that "we
parted very good friends . . . ." [FN81]
More or less concurrently with the Albany Congress, Colonel William Johnson independently prepared a report on
the steps necessary to combat French influence in North America. [FN82] This report also was transmitted to the
Board of Trade by Lieutenant Governor DeLancey. In his report, Colonel Johnson recommended the appointment of
Indian agents to live among the Indians and communicate regularly with colonists. In addition, he deplored the lack
of unity among the colonies in handling Indian affairs:
Here I cant help observing that for want of a strict correspondence between the several Governments as above, in
regard to Indian affairs, that the Indians must think there can be no union in our Councils, when it has been known
more than once, that the Six Nations have been invited to a conference by different Colonies at the same time. This
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looks among the Indians, as tho' our Measures were not mutual, and occasions them to be divided in their Councils
also, being doubtful of our acting with vigour and unanimity ettc. against the French. [FN83]
Simultaneously, concerns over the governmental machinery for handling Indian affairs were raised in London.
Even before the Albany Congress, Peter Wraxall, the New York Secretary of Indian Affairs, had prepared an
abridgment of the New York Indian Records and transmitted it to Lord Halifax in an effort to demonstrate the
incompetence of the Indian commissioners *348 at Albany and the need for a new system of regulating Indian
affairs. [FN84]
On June 14, 1754, the Crown ordered the Board of Trade to prepare a "Plan of General Concert" for the North
American Colonies. [FN85] The plan, reported on August 9, 1754, proposed that
the sole direction of Indian affairs be placed in the hands of some one single person, Commander in Chief, to be
appointed by Your Majesty, who is be authorized to draw upon the Treasurer or other proper Officer of each Colony
for such sums of money as shall be necessary, as well as for the ordinary as extraordinary service, according to the
Quota settled for each Colony. [FN86]
The Board of Trade noted that while other parts of the plan required either colonial approval or an Act of
Parliament, this portion required only that the King appoint some person for this purpose. [FN87] In support of its
proposal, the Board of Trade argued:
[C]ircumstanced as the Colonies are, divided into seperate and distinct Provinces, having little or no connexion
with or dependence upon each other, neither this nor any other plan of Union could be effectual, unless the
command of the Forts and troops and the management of Indian affairs and services should be put under one general
direction. [FN88]
After the Board of Trade reviewed the results of the Albany Congress, it sent a lengthy report to the King on
October 29, 1754, detailing the importance the Congress had placed on committing the management of Indian
affairs to a single administration rather than the individual colonial assemblies or the commissioners at Albany.
[FN89] The report stressed separating the private interests of traders from the public administration of Indian affairs
and concluded by suggesting that provisional measures be taken until a plan of union was approved, including the
appointment of Colonel Johnson as a representative of the British government with the Indians and the initiation of
an inquiry into Indian grievances regarding their lands. [FN90]
*349 The Albany Congress coincided with the renewed outbreak of war between England and France in North
America. The failure of colonial management of Indian affairs already was evident. When it became clear that the
colonial governments unilaterally would adopt neither the Plan of Union offered by the Albany Congress nor the
Crown's recommendation, the British government acted on its own. The Board of Trade removed control of both
Indian and defense matters from the governors and the colonial legislatures, recommending that General Braddock
be directed to remedy these deficiencies. General Braddock then appointed William Johnson as the British sole
superintendent of the management of Indian affairs with the Six Nations Iroquois Confederation and their allies, and
Johnson immediately undertook to enlist the Indians on the side of the English. [FN91]
The appointment of William Johnson as sole superintendent in the North was only the first step in a series of
actions that increasingly centralized control and management of Indian affairs in officials directly responsible to the
British government. In 1756, Edmond Atkin was named to oversee British Indian affairs in the South and was
replaced six years later by John Stuart. [FN92] While the management of trade and land cessions nominally
remained in the hands of colonial officials, the new British superintendents exercised increased control in these
sensitive areas. Furthermore, the Board of Trade more actively interjected itself into the resolution of these land
disputes, recognizing that Indian land frauds had produced numerous Indian complaints. In 1753, Sir Danvers
Osborne, the governor of New York, was instructed by the Board of Trade to forbid purchases of land by private
individuals, "but when the Indians are disposed to sell any of their lands the purchase ought to be made in his
Majesty's name and at the publick charge." [FN93] On March 19, 1756, the Board of Trade wrote to both Governor
Hardy and Chief Justice DeLancey regarding the land frauds of which the Mohawks had complained,
recommending that they cooperate in securing an act of the New York legislature that would vacate the offending
patents. [FN94]
Colonial officials did not immediately accede to British assertion of imperial control over Indian affairs, however.
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Governor Shirley of Massachusetts attempted to undercut Colonel Johnson's authority by telling the Mohawks that
Johnson was responsible to him rather than to the king. [FN95] Governor *350 Hardy of New York also protested
the altered power relationships in the management of Indian affairs. Though he had no quarrel with the choice of
William Johnson as chief manager of Indian affairs in the northern colonies, on January 16, 1756, he nevertheless
wrote the Board of Trade:
With respect to the six Nations, I must beg leave to offer it as my opinion that the Governor of this Province
should have the chief direction of their affairs, and that no steps should be taken with them without consulting him;
he has always directed the transactions with them, has and should have the greatest weight and influence with them
it is through him that His Majestys commands have always been conveyed to them, and in his Government they live,
some proper person under this direction should have the management and conduct of Indian affairs, with such
assistance as shall be found necessary from time to time, for the more particular execution of the measures, that may
be thought needful to be taken with the Indians, to cultivate the British Interest with them, and to counterwork the
Artifices of the French, and no other person should intermeddle in these matters, he should have the choice of such
as he may judge necessary to imploy under him that the minds of the Indians may not be distracted by different and
contradictory relations and measures[.] But be made sensible that the pleasure of the Great King, their Father, is only
to be received through this Channel. [FN96]
While William Johnson assumed control of the British management of Indian affairs in the North and West, his
inability to completely control the actions of all the colonial governments during the French-Indian War seriously
jeopardized British interests. During the spring of 1756, for example, Johnson was arranging a meeting with the
southern Indian tribes through the Iroquois Confederation when Governor Morris of Pennsylvania unilaterally
declared war against the Delaware and Susquehannah Indians without any effort to contact tribes still friendly to the
British interest. On May 28, 1756, Johnson wrote to the Board of Trade protesting that Morris's premature actions
would probably prevent the southern Indians from coming to Onondaga for the planned conference. [FN97]
Similarly, during the fall of 1757, Johnson wrote to the Board of Trade complaining about colonial land policies that
*351 had alienated the Indians as well as the lack of proper support from Virginia for the Cherokee war efforts
against the French. [FN98]
During this period, Pennsylvania became increasingly distrustful of the Crown centralization of the management of
Indian affairs. The Crown's agent, Sir William Johnson, was gaining influence and increasingly pressing the
Iroquois to control Delaware tribes to the West. [FN99] This effort strengthed both the Iroquois and the New York
and Crown interests, thereby posing a threat to Pennsylvania. After Lord Loudon ordered the governor to stop the
separate provincial dealings with the Indians, the Pennsylvania assembly nevertheless arranged, with the
concurrence of the governor's council, a conference with the Delaware Indians to make a firm peace directly with
the colony. [FN100] The assembly hoped the conference would yield a peace which thereafter would be referred to
Sir William Johnson for final resolution and ratification. [FN101] Pursuant to these initiatives, the conferences were
initially held at Easton in November, 1756, with representatives from the Iroquois, the Delawares, Shawnees, and
Mahicans in attendence. [FN102] The initial talks stalled when Teedyusung, the Delaware leader of the Indian
delegation, concluded that he could not act for other essential allied tribes who were not represented. [FN103]
Negotiations resumed at Easton the next summer, during July and August, 1787. Teedyusung's Delawares, various
Senecas, and a few other unidentified representatives from the Six Nations attended. [FN104] A peace between
Pennsylvania and Teedyusung's delegation was ultimately concluded after lengthy negotiations. During these
negotiations, Teedyusung refused to deal with William Crogan, Sir William Johnson's deputy from Philadelphia,
because he had no treaty relationship with Johnson. [FN105] The history of dealings with the Delaware to that date
was therefore perceived by the Indians to bind them to bilateral political dealings with Pennsylvania colonial
authorities, not to the Crown or its agents. Initially, the Indians at this conference sought redress for the Walking
Purchase, a highly controversial case of land fraud. Ultimately, however, Teedyusung removed the land fraud issue
from discussion in favor of securing a direct political alliance with Pennsylvania and a guarantee of a permanent
homeland with an English style settlement. Thus, the Delawares agreed to the peace in exchange for two promises--a
guarantee of a permanent settlement in the Wyoming Valley and an arrangement that removed Teedyusung's
Delawares from the feudal, paternalistic tutelage under which the Iroquois styled the Delaware *352 as women
protected and negotiated for by their uncle, the Iroquois. [FN106] This promised arrangement bothconflicted with
the British Indian policy and posed potential conflicts with the Iroquois and New York, each of which sought to
protect its political advantages in the area. Efforts to stabilize this tenuous arrangement culminated in the great
Treaty of Easton after a treaty conference convened in October, 1758. [FN107]
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The Easton negotiations were presided over by the governors of Pennsylvania and New Jersey with Indian
delegations present from thirteen different eastern Indian nations, including all Six Nations of the Iroquois
Confederation and the Delawares. [FN108] The interests of the Crown again were represented by Croghan as
Johnson's deputy. These complex multilateral negotiations produced a new set of geographic and political
arrangements. These arrangements established the geographic model for the Proclamation of 1763 and evidenced the
need for the altered political relationships brought about by that document. Central to the negotiations that produced
the Treaty of Easton was a restoration by Thomas Penn--partly as a result of pressure from William Johnson--of a
1754 cession of lands west of the Alleghenys or Appalachians to the Iroquois. This was the land occupied by the
Ohio Delawares. This cession not only secured their homeland, it also restored these Delawares to a feudal political
relation with the Iroquois Confederacy, thereby restoring Iroquois hegemony and British policy. [FN109] Built on a
delicate balance of political interests, the Treaty of Easton thus pitted Crown interests against the individual colonies
while simultaneously setting the Iroquois empire against the Delawares, Shawnees, and other western tribes, and
placing the interests of Pennsylvania and New Jersey against those of other northern colonies, including New York.
The delicate political balance crafted in the Treaty of Easton, however, contained the seeds of its own destruction.
One of the terms of the peace message carried to the Ohio Delawares indicated that they might come directly to
Philadelphia to negotiate old grievances and a new friendship directly with the Pennsylvania authorities, presumably
without Iroquois tutelage or Crown control. [FN110] Thus, just as the fragile political balance had been constructed
at Easton, the scene was set for its potential demise. The Iroquois undoubtedly understood the potential implications
of this provision since two Cayuga chiefs, representing the Iroquois Confederation, accompanied the peace party as
it moved westward toward the Ohio to communicate the new Iroquois peace to western tribes. [FN111]
*353 The 1758 Treaty of Easton provided the geographic model for British- Indian arrangements contained in the
Proclamation of 1763, while indicating the need for new political arrangements among the colonies to prevent
unilateral action by Pennsylvania--or any other colony--from unraveling the delicate covenant that bound the
Iroquois, the Delaware, the Shawnee, and the other tribes of the area to the British interest. It was, therefore, an
important forerunner to the adoption of the Proclamation.
Compared to the policies of some of the colonial governors, William Johnson's policies toward the Indians
represented an enlightened combination of British self-interest and genuine respect. As hostilities drew to a close in
the spring of 1759, Johnson offered suggestions to the Board of Trade for the future management of Indian affairs.
[FN112] Stressing the importance of the Indian trade to Britain, Johnson recommended as the best vehicle for
improving relations "[a]n equitable, open and a well Regulated Trade with the Indians . . . ." [FN113] Furthermore,
he urged that the
Indians ought to be redressed or satisfied in all their reasonable and well founded complaints of enormous and
unrighteously obtained patents for their Lands. And Treaties of Limitations with the respective Provinces agreed
upon, and religiously observed, with regard to the Bounds of our settlements towards the Indian Country . . . ."
[FN114]
In addition, Johnson emphasized the need for missionaries and interpreters among the Indians if the British desired
their influence to increase. Finally, Johnson urged the establishment of an Indian affairs office directly responsible
to the Crown:
The Superintendancy and Direction of Indian Affairs and Trade to be under an Authority from the Crown.
Whether this should be invested in one Man or in Commissions to serve in those Provinces which from their
situation are and always will be more immediately connected with the Indian negotiations & Trade is submitted to
his Majesty's wisdom and pleasure; But I beg leave to suggest to Your Lordships that the Management herein on the
part of the Crown, upon the System I am pointing out, will in my opinion be too great a weight, and of too diffusive
a Nature for any one person duely to inspect and preside over. [FN115]
Subsequently, Johnson conveyed various complaints from the Delawares, Mohawks, and Mohegans regarding their
land claims and repeatedly urged the importance of redressing these complaints. [FN116]
*354 III. THE PROCLAMATION OF 1763:
CROWN CENTRALIZATION OF MANAGEMENT OF INDIAN AFFAIRS
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When war with France ended, Britain began to assess the reasons for initial hostility or neutrality among the Indian
tribes. Conflict over land was one obvious source of discord. Accordingly, London embarked on a program for
centralizing the management of control over land policies, contemplating ultimate extension of this centralization to
trade and other areas of Indian affairs.
On November 23, 1761, the Crown approved a report from the Board of Trade that recommended that no
settlements be permitted upon the frontiers until the Indian claims had been ascertained and resolved. [FN117] The
report specifically recognized the Mohawk River valley dispute and recommended that no settlements be permitted
in this area until the Indians were satisfied, noting that the New York government's policies in granting lands had "in
general been very exceptionable . . . ." [FN118] Accordingly, the Board of Trade instructed the governors of all the
colonies to (1) cease granting lands possessed, occupied, or claimed by the Indians; (2) remove any persons who had
"either willfully or inadvertently" encroached on Indian lands without proper license; and (3) prosecute all persons
who had secured title to Indian land by fraud. [FN119] These instructions also directed the governors to transmit
directly to the Board of Trade any applications for licenses to purchase Indian lands. [FN120] Thus, in 1761, the
Crown divested local colonial authorities of control over Indian land cessions, and officials responsible directly to
the Board of Trade in London assumed direct management of such matters.
British succession to French title in Canada at the conclusion of the French-Indian War threatened Indian lands in
upper New York, the Ohio valley, and westward with serious English encroachments. Applications to settle and
establish trading outposts in these areas rapidly increased in 1762. [FN121] French missionaries seized any
opportunity to fuel Indian concerns over this new British expansion. The following year, warfare often known as
"Pontiac's War" or "Pontiac's Rebellion" erupted on the western borders of the English settlements when many of
the tribes formerly subject to French influence allied together against the British. [FN122]
Pontiac's Rebellion further accelerated British efforts to centralize control of Indian affairs. As hostilities erupted,
the British government was making plans for the governance of the newly-acquired territories in Canada, East *355
and West Florida, and Grenada as well as for the management of Indian affairs in the older North American
colonies. In May of 1763, Lord Egremont, secretary of state for the Southern Department, published Hints Relative
to the Division and Government of the Conquered and Newly Acquired Countries in America. [FN123] It proposed,
among other things, a boundary line along the western edge of the older colonies to advantage the Crown
commercially and to control the colonies' western expansion. John Pownall, secretary to the Board of Trade, also
urged establishment of a boundary line between the crest of the Appalachians and the Mississippi and that trade with
the Indians in this area remain free to British subjects but regulated by the Crown. [FN124] In the fall of 1763, both
William Johnson and his aide Colonel George Crogan also wrote letters to the Board of Trade supporting the
western frontier boundary line. [FN125] Johnson particularly noted that, while the Ottawa Confederacy and the Six
Nations had permitted colonists to establish trading outposts in their country, they always had considered the
northern parts of North America as their sole property. [FN126] While Johnson's and Crogan's letters arrived in
London too late to affect British deliberations over Indian policy, [FN127] they reflected the perceived need for
continued coordination of Indian land policies by the British government.
News of Pontiac's Rebellion arrived in London as the British government was poised to take swift, emergency
action in the area of Indian affairs. Whether such news crystallized British resolve or arrived subsequent to an
independently adopted policy remains less clear. For whatever reason, on October 7, King George III approved a
recommendation of the Board of Trade and issued the Proclamation of 1763. [FN128] Large parts of the document
were devoted to establishing governments for territories now in Canada, Grenada, and Florida as well as certain
other southern states that Britain had recently acquired from France. [FN129] This fact explains the critical
importance of the Proclamation in Canadian history and its centrality to many contemporary issues of Canadian
Indian law. The Proclamation also directly addressed Indian affairs in the original thirteen North American colonies.
Concerning colonial Indian affairs, the Proclamation reaffirmed Crown policy that
*356 the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection,
should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having
been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds . . . . [FN130]
First, it established a boundary line "for the present" between the Euro- American colonies and the Indians at the
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heads or sources of the rivers which fall into the Atlantic Ocean from the West and Northwest--i.e., the crest of the
Appalachian Mountains. It reserved as the exclusive domains of the Indians all land that had not previously been
ceded to the west as well as lands east of the line. This line represented the first legal demarcation of Indian country
and contemplated the existence of a relatively stable--albeit possibly temporary--boundary between British colonial
settlement and domains reserved for the exclusive occupancy and control of the western Indian tribes.
Second, implementing the earlier orders of 1761, the Proclamation also directed that no governor should grant
survey rights or titles to lands within the boundary of "any Lands whatever, which, not having been ceded to or
purchased by Us . . . are reserved to the said Indians, or any of them." [FN131] Governors in Canada and East and
West Florida, however, were authorized to continue granting land within the bounds of their respective colonies as
described in their commissions. [FN132]
Third, the Proclamation "strictly enjoined" British subjects from making any purchases, settlements, or taking
possession of any Indian lands without special license from the Crown and demanded that those who had either
willfully or inadvertently taken possession of such Indian lands be removed from the lands immediately.
Fourth, for cessions of Indian lands located east of the line and within the colonies, the Proclamation precluded
private purchase and directed that
if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased
only for Us, in our Name, at some public Meeting or Assembly of the said Indians . . . and in case *357 they shall be
within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such
Proprietors, conformable to such Directions and Instructions as We or they shall think proper to give for that
Purpose . . . . [FN133]
Thus, even for lands east of the Indian country boundary--lands lying clearly within domains claimed for settlement
by colonial charter--the Proclamation centralized the process of securing Indian land cessions by delegating that
responsibility to officials appointed by and answerable to London. This change was designed to ameliorate the
great Frauds and Abuses [that] have been committed in the purchasing of Lands of the Indians, to the great
Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such
Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined
Resolution to remove all reasonable Cause of Discontent . . . . [FN134]
Here, the Proclamation was referring to the greed and outright fraud that marked prior colonial management of these
matters, such as the Mohawk River Valley dispute that had alienated critical tribes of the Iroquois Confederation.
[FN135]
Finally, the Proclamation began formulating a trade policy long urged by William Johnson. It provided that the
opportunity to trade with Indians should be free and open to all British subjects. A trading license from the governor
of the colony in which the trader resided was required, however, but was obtainable without fee. This licensing
system honed British control of trade policy in two ways. First, the Proclamation required that the trader give
security "to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissories to be
appointed for this Purpose, to direct and appoint for the Benefit of the said Traders . . . ." [FN136] Second, it
provided that this trade license would be forfeited if the trader refused or neglected to observe these regulations.
[FN137]
The Proclamation of 1763 thus represented the culmination of British Crown experience in seeking an effective
model for the management of Euro- American/Indian relations. The new British model, developed after 150 years of
colonial experience in North America, contained three key elements: (1) centralization of the management of land
cessions, diplomatic and other relations, and trade with the Indian tribes in British agents and officials responsible to
the central government in London, coupled with the diminution or elimination of all local colonial authority over
such matters; *358 (2) long-term, effective guarantees to Indian tribes of their lands and resources, including their
hunting and fishing rights; and (3) protection of Indian autonomy and sovereignty, separated and protected from
local colonial authority, even in areas in close geographic proximity to non-Indian settlements.
While the Proclamation of 1763 was stimulated by many of the same Indian and British concerns that culminated
in Pontiac's Rebellion, the document really represented a new plateau in British centralization of control over Indian
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land policies. With the control over the direction of Indian policy shifted to London, the role of colonial officials
diminished to encompass primarily ministerial and proprietary functions. The Proclamation also encouraged the
drawing of a more meticulous Indian boundary line, and this work, too, fell to officials responsible to the Crown-John Stuart in the South and William Johnson in the North. Through a series of agreements with the Indians between
1765 and 1769, Stuart and Johnson had mapped out a boundary line that extended from Canada to Florida. [FN138]
The Proclamation also initiated the centralization of British policies involving Indian trade. After receiving reports
from the Indian superintendents, the Board of Trade began formulating a trade policy that would implement the
regulations envisioned in the Proclamation. On July 10, 1764, the Board reported a plan for
the regulation of Indian Affairs both commercial and political throughout all North America, upon one general
system, under the direction of Officers appointed by the Crown, so as to sett aside all local interfering of particular
Provinces, which has been one great cause of the distracted state of Indian Affairs in general . . . . [FN139]
The plan required superintendents for the northern and southern departments to control the centralization of the
management of all Indian trade and affairs. [FN140] It additionally mandated the repeal of all laws in force in the
colonies for regulating Indian affairs or commerce. [FN141] The plan invested the superintendents, in council with
colonial governors, with powers over trade management, peace and war with Indians, treaty negotiations, and
purchases of land from Indians. The plan would have granted the superintendents and their agents the further powers
of justices of the peace at trading outposts and in Indian country. Like earlier colonial laws, however, their
jurisdiction was limited to cases in which a British subject--i.e., a non- Indian--was an interested party. For example,
the plan would have authorized the superintendents to summarily hear civil cases to the amount of ten pounds
sterling "between the Indians and Traders . . . [or] between one *359 Trader and another . . . ." [FN142] Disputes
that involved only tribal members were to remain exclusively for tribal resolution.
The 1764 plan did not envision substantial interference with Indian self- government. One proposal of the plan did
intrude into Indian governance, though, requiring each town in the southern district to
choose a beloved man . . . to be approved by the Agent or Superintendent for such District, to take care of the
mutual interests both of Indians and Traders in such Town; and that such beloved men so elected and approved in
the several Towns shall elect a Chief for the whole Tribe who shall constantly reside with the Commissary in the
Country of each Tribe, or occasionally attend upon the said Agent or Superintendent as Guardian for the Indians and
protector of their Rights with liberty to the said Chief to be present at all meetings and upon all hearings or tryals
relative to the Indians before the Agent or Superintendent or before the Commissaries and to give his opinion upon
all matters under consideration at such meetings or hearings[.] [FN143]
The plan also contemplated similar political structures in the northern district to the extent that "the civil constitution
of the Indians in this District and the manner of administering their civil Affairs will admit." [FN144] Thus, while
the British intended to continue the long tradition of Indian tribal sovereignty and self-government, they
ethnocentrically perceived a need to impose upon Indian tribes a nonconsensual political structure, one that British
authorities understood, in order to manage the bilateral affairs of trade and diplomacy.
The 1764 plan also contributed to the emerging imperial British trade policy. It limited trading with Indians to
towns belonging to the tribes in the southern district and to trading posts at fixed locations in the northern district.
The plan called for the superintendents and their agents to exercise broad powers in supervising the behavior and
accounts of traders at these locations. The military and the Indian functions were to be separated, and military
officials were precluded from carrying on trade with the Indians or exercising civil authority over the Indian trade.
Colonial governors were to license traders for one year upon posting surety for the proper observance of Indian trade
regulations. Trading licenses were to specify either the trading post at which, or tribe with whom, the trader intended
to deal. Trade in rum and other spirituous liquors, rifles, and certain ammunition was strictly proscribed. Trading
posts and traders were not to give Indians any credit beyond the sum of fifty shillings, nor would any debt in excess
of that sum be recoverable in law or equity. Commissaries of the various trading posts were to keep complete
journals of transactions and occurrences at the post and communicate regularly with the appropriate superintendents.
The *360 British trade officials also were directed to keep standard weights and measures at the trading sites to
resolve any disputes over these matters.
Importantly, the 1764 plan also worked to implement the land policies of the Proclamation of 1763. First, it
proscribed private land purchases from the Indians except in the proprietary colonies. Second, the plan contemplated
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the establishment of exact boundaries with the Indian tribes "with the consent and concurrence of the Indians."
[FN145] Finally, the plan required all purchases of lands from the Indians for the Crown or the proprietary colonies
to be made at a general meeting at which the chiefs of each tribe claiming property in the lands were present and to
be surveyed by a sworn surveyor in the presence and with the assistance of a person designated by the Indians.
With all these provisions, the 1764 plan represented the apex of British efforts to centralize control of Indian
affairs. Its complete implementation, no doubt, would have left the United States with an accepted legacy of
centralized control and might have avoided some of the political and legal problems that thereafter arose frequently.
With the immediate pressures of Indian uprisings and French influence removed, however, the regulation of Indian
affairs once again drifted into the background in the British management of colonial matters. Although the 1764
plan was never formally adopted and was eventually abandoned, the British Indian superintendents used it to guide
their management of Indian affairs and repeatedly called for its complete implementation.
During the summer of 1766, for instance, Johnson wrote to the Board of Trade repeatedly urging the prompt
appointment of the trade commissaries and the immediate implementation of the 1764 plan in order to stem
discontent among the Indians. [FN146] The following year, Johnson prepared a lengthy report entitled Review of
the Trade and Affairs of the Indians in the Northern District of America in which he documented the need to remove
the control of Indian trade from colonial hands and to provide the Indians an impartial means of redressing their
legitimate grievances regarding trade and land. [FN147]
Despite Johnson's strenuous and repeated efforts to secure full implementation of the 1764 plan, the Board of Trade
abandoned the proposal in the spring of 1768. [FN148] The heavy estimated cost to the Crown of twenty thousand
pounds a year, problems with confining trade to specified sites in the North and West, colonial opposition, and the
perceived difficulty of formulating a single plan applicable to all of the different nations of Indians all contributed to
the ultimate demise of the proposal. Ironically, the very success of prior *361 British efforts to centralize control
over Indian affairs rendered less ominous the Indian and French threats, and the marginal costs of the plan therefore
seemed less justified. The Board recommended that the Indian superintendents be maintained to negotiate with the
Indians and to complete the task of fixing the boundary lines of the Indian lands. The 1768 report otherwise
expressly remitted control of the Indian trade to the colonies, urging the colonial legislatures to adopt and enforce
the regulations established by the superintendents. The Board's report explicitly recognized that before the formation
of the superintendents of Indian affairs the regulation of trade by the colonies was subject to substantial abuse and
inattention. The colonies' regulation of trade also had helped to incite Indian unrest and war. Hoping that colonial
governments would learn from this previous mismanagement, the report insisted that these prior failures would
insure increased attention to Indian trade by the colonies.
Despite this encouragement, colonial authorities failed effectively to regulate and coordinate Indian trade. [FN149]
They adopted no new colonial Indian legislation or trade regulations. Moreover, when efforts were undertaken to
convene a general congress of the colonies to prepare a plan for the management of Indian affairs, [FN150] the
Crown itself discouraged the project. Recognizing the unsettled and rebellious nature of the colonies at that time, the
Earl of Hillsborough explained the Crown's reluctance by emphasizing "the little utility on the one hand, and the
dangerous use that has been made on the other of meetings of Commissioners from the several Colonies, to consider
of matters, in which they have a separate and distinct interest . . . ." [FN151] Rather, the Crown preferred to instruct
the governors to urge their respective councils and assemblies "in the strongest manner" to implement some means
of preventing Indian trade abuses and encroachments on Indian lands. [FN152] Nevertheless, the colonies organized
the congress and scheduled it to occur in New York City on December 4, 1771. When the statute authorizing
attendance by the Virginia commissioners was subsequently repealed, the absence of their delegates and others
ultimately caused the colonies to cancel this congress. [FN153]
Indian discontent with the colonists accelerated as the result of such colonial inaction. William Johnson reported to
the Crown that a host of trade *362 abuses and land encroachments had caused substantial unrest among the Indians.
[FN154] Colonial inaction and corresponding deterioration of Indian relations prompted the Earl of Hillsborough to
lament:
I am persuaded that could it have been foreseen, that the Colonies would have been so backward and negligent in
meeting those gracious intentions of the King, which included his Majesty to leave the Regulation of the Commerce
to them, their Representation on the subject would have not so far prevailed as to have occasioned such a deviation
from the plan at first proposed . . . . [FN155]
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The inattention of the colonies to the need for implementing trade regulations also caused the Earl of Dunmore, then
the governor of Virginia, to question whether separate action by the colonial legislatures could ever succeed. He
concluded that the only effective plan for the regulation of Indian trade must come from Parliament. [FN156] Thus,
evidence suggests that on the eve of the American Revolution, separate, independent colonial management of Indian
affairs had failed yet again. Immediately prior to 1776, the stage was set for reassertion of complete imperial control
over the management of Indian matters. The Revolution, however, threw colonial hierarchies into complete disarray,
leaving the newly-independent colonies to reconstruct a functional institutional machinery for regulating Indian
affairs.
IV. THE LEGACY OF THE COLONIAL PERIOD IN INDIAN AFFAIRS:
THE PROCLAMATION OF 1763 AND AMERICAN LAW
The colonial era gave the new nation a substantial legacy of legal thought, political experience, and jurisprudential
assumptions about the management of Indian affairs. One very important assumption gleaned from this colonial
legacy was the concept of tribal sovereignty. Since the initial colonization of North America, the Indians generally
had lived in separate, self-governing towns and villages--in separate political entities. While some colonists
denigrated Indian political structure by suggesting that they had no government or laws, the colonial authorities
rarely tried to govern the Indian tribes directly. Indian tribes, therefore, remained truly self-governing in the control
of daily social, political, and economic behavior, at least in their own villages. To the colonists, "Indian affairs"
meant the bilateral contacts the British colonists and governments had with the Indians. Principally, such *363
contacts involved four closely intertwined areas: (1) trade, (2) land cessions, (3) peace and diplomacy, and (4) war.
Indian behavior in relation to the colonists, particularly in the British towns and settlements, also fell within the
scope of colonial regulation of Indian affairs, although to a lesser extent.
During the colonial period, then, the governance of Indian affairs simply was not synonymous with the governance
of the Indian tribes. Rather, it was the regulation of cross-cultural contacts with the Indians, managed principally by
controlling the non-Indian side of the bilateral relationship. While the British repeatedly asserted ultimate
sovereignty over the Indian tribes and the lands they occupied, such claims to sovereignty were not assertions of
plenary governmental authority. Rather, they were claims against other European powers' assertions of exclusive
bilateral contact with the Indians. The British, for example, long claimed sovereignty over the Six Nations Iroquois
Confederation in order to exclude French influence. Neither the British government nor the colonial authorities in
New York, however, ever purported to govern the Iroquois directly. Instead, they regulated trade, land cessions, and
diplomacy with the Iroquois. The Mohegan case [FN157] also indicates that English and international law treated
the tribes as sovereign political entities outside the reach of colonial law, irrespective of their size or location, so
long as the tribal political unit remained intact. Except for the praying Indian towns in Massachusetts and other parts
of New England and, to a much lesser extent, the regulation of tributary tribes in Virginia, the colonies and later the
British government respected the autonomy of the Indian tribes. Essentially, they governed Indian affairs by
regulating bilateral relations and not the Indians themselves.
The characteristically ethnocentric British failure to understand Indian political or legal structures led some of the
colonies, and later the British government, to impose a political structure of their own on the tribes through
appointment of a chief or headman with whom the British could discuss and manage mutual affairs. While the
British did not seek to govern the daily life or the political structure of the Indian tribes directly, they nevertheless
profoundly affected Indian life through trade and diplomacy. [FN158] Chief Justice Marshall, in Worcester v.
Georgia, [FN159] later accurately summarized the extent of colonial regulation of internal Indian affairs:
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the
part of the Crown, to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign
powers, who, as traders or otherwise, might *364 seduce them in foreign alliances. The king purchased their lands,
when they were willing to sell, at a price they were willing to take; but never coerced surrender of them. He also
purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, nor
interfered with their self-government, so far as respected themselves only. [FN160]
Colonial efforts to establish a Euro-American governmental system to manage Indian affairs also demonstrated the
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need for centralization of control and coordination in such matters. The inability of the colonies to separately
implement a successful Indian policy was evident by 1754, when both the Board of Trade and the colonial
representatives to the Albany Congress called for a union of the colonies to manage Indian policies. Failure to
effectuate such a union ultimately led to centralization through the Crown's direct assumption of control of Indian
affairs from 1755 to 1768, the Proclamation of 1763 and the 1764 trade plan marking the apex of this development.
The Crown's unilateral assertion provided necessary coordination and initiated the beginnings of a successful British
Indian policy. Ironically, the very success of British authorities in gaining the support of the Indians against the
French in the latter portion of the French-Indian War and in quelling Pontiac's Rebellion removed the incentive for
large expenditures by the Crown for a British Indian bureau. Similarly, this achievement by British officials caused a
brief reversion in 1768 to partial reliance on colonial authorities in regulating Indian trade.
The colonial experience afforded considerable evidence of the importance of coordination of Indian trade, land,
and diplomatic policies. Nearly half a century of direction and later control by the British government of Indian
policy left the colonies a long legacy of successful centralized regulation of Indian affairs. These efforts to control
Indian affairs, however, had never been uniformly popular with the colonists; and underlying tension between the
need for effective, coordinated and well-run Indian policy and the profits colonists knew could be made in Indian
trade and land cessions always lingered. The brief hiatus in the centralization of British power immediately before
the Revolution again gave colonists the opportunity to renew demands for local control of Indian affairs. The newlyindependent states, however, only replayed the mistakes made earlier by the colonies under British ruleas they tried,
during the confederation period, to implement separately an Indian policy with ineffectual and limited coordination
by the national government. Again, the conflict between local desires for economic profit and land and the necessity
for coordination and centralization in Indian regulation frustrated the efforts of the new nation to generate a
successful Indian policy after the Revolution.
While the British legal policy of respecting the Indians' sovereignty within their own territory was clear and
constant, the colonial authorities-- who for *365 long periods of colonial history held primary responsibility for
managing Indian affairs and implementing this British policy--were not always as sanguine about Indian tribal
sovereignty. In fact, they sometimes ignored and resisted it. The seventeenth-century history of the subjugation of
the New England tribes despite royal instructions to respect Indian land titles and to purchase needed land from
them illustrated such recalcitrance. The establishment of the system of tributary tribes in the colony of Virginia
provided a further, though less blatant, demonstration. Similarly, Connecticut's often repeated and equally often
rejected claim in the Mohegan land case--that the Indians were subject to colonial law and colonial courts-- further
testified to colonial resistance to the constitutional notion that the Indians were separate and sovereign peoples.
Despite clear British legal policy, the Gordian knot that tied the Indians' legal status to the mechanism for
management of Indian affairs left both issues unresolved during the colonial period: the new republic was left a
legacy of disagreement about both the legal status of Indian tribes and the proper processes for management of
Indian affairs. These disagreements plagued the new nation until the adoption of the 1789 Constitution and perhaps
for some time thereafter.
In contrast to Canada, American Indian law has treated the Proclamation of 1763 primarily as a historical footnote
rather than a legally enforceable source of law. The Proclamation's importance has caused Canadian Native law to
differ from United States Indian law in at least three areas: fiduciary responsibility, property rights, and
province/tribe relations.
In Canadian Native law, the fiduciary duty that the Crown owes to Native peoples arises directly from the
Proclamation itself. In Guerin v. The Queen, [FN161] the Supreme Court of Canada found that the Proclamation's
phrase "who live under our Protection" created a fiduciary responsibility for the Crown in dealing with the
indigenous peoples. [FN162] Because this duty originates in the words of the Proclamation, the Crown, when
challenged, bears the burden of proving that this duty has not been breached. Furthermore, the Crown's fiduciary
duty extends beyond acting in a trustee capacity; the duty has been found to exist even in expropriating land for
federal use. [FN163] In American law, however, any fiduciary duty between the Federal Government and the
Indians must be found outside the Proclamation, and recent cases suggest it is the Indians who have the burden of
proving that such a duty exists. [FN164]
*366 The Proclamation of 1763 also protects enforceable, vested property rights in Canada based on aboriginal
possession. The Canadian Supreme Court also found in Guerin that the Proclamation was a source of vested legal
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title for Indians. [FN165] In the United States, the heavily criticized case of Tee-Hit-Ton Indians v. United States
[FN166] held that aboriginal title, while enforceable against third parties, does not constitute a vested property right
for American Indians protected by the fifth amendment takings clause against intrusions by the United States.
Finally, the Proclamation affects provincial-bank relationships in Canada in two ways. First, provincial laws that
conflict with the Proclamation are invalid because federal law preempts this area. [FN167] Second, Canada has
assumed the same position as the British with respect to the Proclamation: the Canadian government has centralized
all dealings with the Indians. Section 91(24) of the British North America Act of 1867 gives the Canadian
Parliament exclusive authority over Indians and Indian lands. [FN168] One bureau, the Dominion of Indian Affairs,
regulates all matters pertaining to Indian affairs. [FN169] Provinces have no individual regulatory authority over
Indian affairs with the exception of "general application laws." These laws are general regulations of the province
and extend throughout the territory without singling out any class of citizens. [FN170] General application laws,
therefore, continue to apply to Indian Reserves. [FN171] Disputes between a tribe and a province can usually be
settled by appropriate general application laws. [FN172] Occasionally, some general application laws will be
invalidated if they conflict with federal law or if they attempt to regulate an area of exclusive federal jurisdiction.
[FN173] The centralization of Indian management has created *367 a much clearer doctrine of province/tribe
relationships in Canada than has evolved in the United States.
In almost two hundred years of American legal history, the Proclamation has been cited by the United States
Supreme Court only eleven times, and usually only as a passing historical reference. [FN174] In none of these cases
was the Proclamation of 1763 considered an important source of law, but rather usually was cited as a document of
mere historic interest. Indeed, the two most recent references were contained only in dissenting opinions. [FN175]
Not surprisingly, the most extended judicial discussion of the historical importance of the Proclamation in American
Indian law was offered by Chief Justice Marshall in Worcester v. Georgia:
The proclamation issued by the king of Great Britain, in 1763, soon after the ratification of the articles of peace,
forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any *368 lands
whatever, which, not having been ceded to or purchased by us, (the king) as aforesaid, are reserved to the said
Indians, or any of them.
The proclamation proceeds:
"[A]nd we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve,
under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to
the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid; and we do
hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements
whatever, or taking possession of any of the lands above reserved, without our special leave and license for that
purpose first obtained.
"And we do further strictly enjoin and require all persons whatever, who have, either wilfully or
inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands
which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to
remove themselves from such settlements."
A proclamation, issued by Governor Gage, in 1772, contains the following passage: "whereas many persons,
contrary to the positive orders of the king, upon this subject, have undertaken to make settlements beyond the
boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between
the whites and the said nations; particularly on the Ouabache." The proclamation orders such persons to quit those
countries without delay.
Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded
all other Europeans; such her claims, and such her practical exposition of the charters she had granted; she
considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under
her protection; and she made treaties with them, the obligation of which she acknowledged.
This was the settled state of things when the war of our revolution commenced. [FN176]
Legal inattention in the United States regarding the Proclamation of 1763 is most likely explained by the sharp
legal break with Britain caused by the Revolution. Additionally, the newly independent American states probably
*369 were not prepared to enforce a royal proclamation of King George III, whom they regarded as a loathsome
despot. Instead, the new national government struggled to replicate the Indian land protections of the Proclamation
through its own laws. First, under the aegis of the Articles of Confederation, the new government issued its own
Proclamation of 1783 which purported to restrain alienation of Indian lands outside state boundaries. [FN177]
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Ultimately, the new government replicated many of the policies of the Proclamation of 1763 in the Indian Trade and
Intercourse Acts enacted in 1790, 1793, 1802, and 1834, all under the authority of the Indian commerce clause of the
Constitution. [FN178]
While the Proclamation of 1763 remains primarily of historical rather than legal interest in the United States, what
it has contributed to the development of federal Indian law should not be underestimated. The Proclamation
represented the pinnacle of centralized control over the management of *370 Indian affairs. It directly confronted the
greed of local colonial authorities that produced land frauds and Indian disaffection. It also laid the cornerstone for
later federal Indian policies by seeking harmony in Euro- American/Indian relations through protection of Indian
autonomy and land rights. The principle underlying the Proclamation--that those Euro-American colonists closest to
Indian country often had the most to gain from defrauding or overreaching Indian tribes--was manifested through
the establishment of the notion that local authorities could be trusted least in the management of Indian affairs. In
short, the Proclamation of 1763 sought to resolve the three most important struggles that plagued the management of
colonial Indian affairs and which, ironically, epitomized the focus the Euro-American/Indian conflict over the next
225 years. These three struggles involved: (1) the contest between centralized and colonial--now state--management
of relations with Indian tribes; (2) conflicts between honoring legal and treaty guarantees of Indian land rights and
autonomy and the Euro-American settlers' economic need for land and resources; and (3) difficulties involved in
reconciling Indian political sovereignty with the authority of surrounding governments, particularly colonial--now
state--authority. The Proclamation was designed to resolve these issues in favor of centralized control, through
agents responsible to London, through protecting Indian treaty guarantees, land rights, and access to hunting and
fishing resources necessary to their survival and through recognizing and respecting tribal sovereignty and
autonomy. But the Crown's wavering course after 1764 muddied the pristine guidance offered in the Proclamation.
By the eve of the Revolution, British officials recognized their mistake, but by that time it was too late to rectify the
deteriorating situation. They left the newly independent states a very mixed message on these three critical
questions. This legacy of confusion over these three critical issues of Indian policy helped explain why, over the
next 225 years, the new nation continued to reinvent Indian policy on questions first clearly addressed in the
Proclamation of 1763.
During the confederation period, for example, the Continental Congress struggled endlessly with competing state
claims to authority over Indian affairs and Indian resources. The confederation government consistently sought to
pacify the Indian tribes by guaranteeing their land rights and regulating trade with the tribes. Thus, confederation
treaties carefully protected the legal and political autonomy of the tribes. [FN179] New York, North Carolina, and
Georgia, however, repeatedly protested centralized initiatives *371 in Indian affairs involving tribes located within
their extensive claims area. [FN180] New York even went so far as physically to disrupt treaty negotiations at Fort
Stanwix in 1784 by arresting the federal treaty commissioners. [FN181] After Georgia's unilateral efforts at cessions
and treaty-making with rump delegations of the Creek Nation spawned an Indian war on the eve of the
Constitutional Convention, a committee of the Continental Congress summarized the national government's
untenable situation, a position highly reminiscent of that faced by the British in 1763:
An avaricious disposition in some of our people to acquire large tracts of land and often by unfair means, appears
to be the principal source of difficulties with the Indians . . . . The committee conceives that it has been long the
opinion of the country, supported by Justice and humanity, that the Indians have just claims to all lands occupied by
and not fairly purchased from them. . . . It cannot be supposed, the state has the powers [ [ [to make war with Indians
or buy land from them] without making [the Indian affairs clause of article IX of the Articles of Confederation]
useless . . . and no particular state can have an exclusive interest in the management of Affairs with any of the tribes,
except in some uncommon cases. [FN182]
Like the British Crown, the framers of the Constitution sought to deal with these problems by asserting complete
centralized control of Indian affairs and by adopting a policy that recognized and protected Indian sovereignty and
land rights. In adopting the Indian commerce clause, the framers deliberately excluded the two reservations of state
authority contained in Article IX of the Articles of Confederation. As with the Proclamation of 1763, the drafting of
the Indian commerce clause reflected a determined policy of eradicating destructive local management of Indian
affairs. During the Constitutional Convention, on June 19, 1787, James Madison criticized a conservative plan of
union offered by the New Jersey delegation:
Will it prevent encroachments on the Federal authority? A tendency to such encroachments has been sufficiently
exemplified, among ourselves, as well in every other confederated republic . . . . By the federal articles, transactions
with the Indians appertain to Congress. Yet in several instances the States have entered into treaties & wars with
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them. [FN183]
*372 Madison would later explain in The Federalist:
The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles
of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians,
not members of any of the States, and is not to violate or infringe the legislative right of any State within its own
limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question
of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members
of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far
intruding on the internal rights of legislation, is absolutely incomprehensible. [FN184]
Thus, the cycle of history that characterized the evolution of national control of Indian affairs, from the Revolution
to the adoption of the Indian commerce clause of the Constitution and its implementation in the 1790 Trade &
Intercourse Act, replicated many of the debates between the colonies and British Crown over the British
centralization of control of Indian affairs occurring three decades earlier. Had this cycle been broken in 1787, one
might assume that the nation had mastered the hard-learned lessons of history. Unfortunately, the next two centuries
of federal Indian policy have replayed the very same debates and have continued the ambiguities of colonial history,
even in the wake of the Proclamation of 1763.
During the late eighteenth and early nineteenth centuries, the states persisted in the pre-1763 traditions of
negotiating Indian land cessions without federal approval and of simply expropriating Indian lands without any
pretense of tribal consent. [FN185] This process continued notwithstanding the federal government's assertion of
complete control over Indian affairs and its efforts to protect Indian tribes from state-originated attempts to
appropriate their tribal resources and to destroy tribal sovereignty. These state actions provided the fodder for the
rash of eastern Indian land claims litigated in federal courts over the past two decades. [FN186] Southern states,
dismayed by the slow *373 pace at which the federal government was dispossessing Indian tribes of their land and
resources, began passing laws in the 1820s purporting to expropriate Indian lands for white use and to disband tribal
governmental *374 authority directly. [FN187] While the United States Supreme Court declared such state laws
"repugnant to the constitution, laws, and treaties of the United States," [FN188] the federal government nevertheless
ignored both the lessons of the Proclamation of 1763 and the spirit of the Supreme Court's decision by adopting and
enforcing a removal policy designed to rapidly remove all tribes from state boundaries, in favor of their autonomous
existence beyond some mythical frontier line of settlement. [FN189]
The removal policy ignored the teachings of the Proclamation by creating new grounds for Indian discontent and
by failing to protect Indian land rights established in existing treaties. It must be noted, however, that the intellectual
roots of the removal policy--the idea of permanently setting aside land for Indians beyond the mythical frontier line
of settlement--also can be found within the Proclamation of 1763. Before it was abandoned as a failure in the midnineteenth century, the removal policy led directly to the Cherokee Nation's long Trail of Tears death march and to
the displacement and relocation of a vast number of other tribes from all over the eastern seaboard, the Mississippi
Valley, and the Midwest, and, ultimately, as far west as the Pacific coast. [FN190]
Immediately following the reservation policies of the mid-nineteenth century (1850-1887), which sought to
replicate--or, more accurately, to force-- the separate Indian existence contemplated in the Proclamation of 1763,
[FN191] renewed demands for Euro-American exploitation of Indian resources produced efforts to fragment Indian
sovereignty and enlarge state authority by means of the late nineteenth and early twentieth-century policy of
allotment. [FN192] The allotment policy represented America's final solution to the Indian problem by breaking up
tribally held land estates. Indian tribal *375 land estates were parceled out and allotted in severalty to tribal
members. [FN193] All allottees were made citizens of the United States subject to state law, rather than federal or
tribal law, after a period of trust supervision, usually twenty-five years. [FN194] Not surprisingly, land not needed
for fixed- acreage allotments was sold as "surplus" to Euro-American settlers during this period of active
homesteading and major immigration. The allotment period (1887-1932), then, like the period between 1768 and the
Revolution, represented the return to greed and local control in Indian affairs. The net result was, as in colonial
times, that tribal traditions and cultures were seriously impaired and Indians were dispossessed of most of their
resources. During this period, the total Indian land base shrank from 138 million acres in 1887 to 48 million acres in
1932. [FN195] Simultaneously, some tribal languages and cultures were forcibly exterminated or seriously impaired
by brutal assimilative education policies [FN196] and by imposed coercive criminal justice policies designed to
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stamp out tribal traditions and replace them with western beliefs and behaviors. [FN197]
Having repudiated the allotment system in 1932, the federal government next attempted to realize Indian
Commissioner John Collier's dreams of resurrecting Indian sovereignty, pride, and dignity by enacting the Indian
Reorganization Act of 1934. [FN198] This law ushered in a new policy of centralized federal government protection
for Indian sovereignty and land rights quite similar to that adopted by King George III in his Proclamation of 1763.
Immediately following this program's implementation, however, forces of localism and non- Indian economic
considerations demanded its abandonment, or, as it turned out, its temporary displacement by a new policy of
termination.
*376 The termination era began in the 1940s as Congress, by tribe- or state-specific laws, transferred jurisdiction of
Indian affairs in Indian country over to certain designated states. [FN199] This trend accelerated in the 1950s and
continued through 1962. Many but not all tribes were either completely severed from federal (central) government
protection and made substantially dependent on state authorities [FN200] or were, under Public Law 280 of 1953,
[FN201] made at least partially subject to state criminal and civil adjudicatory jurisdiction.
After abandoning its disastrous termination policies, the federal government has once again charted a policy of
protecting Indian tribal sovereignty and resources since the 1960s. As under the regime of the Proclamation of 1763,
the management of Indian affairs primarily has been handled through intergovernmental relations between the
national government and the tribes. As under the Proclamation of 1763, recent federal Indian law and policy has
diminished the larger role pursued by some states under the policies of the termination era. [FN202] Indeed, over the
last quarter-century, Congress has *377 enacted a number of statutes designed to return authority to tribes that had
been "lawfully" or less legitimately usurped by the states. [FN203]
These changes have not eliminated increased demands for localism and greater demands for non-Indian
expropriation of Indian resources that lurk beneath the surface of federal-tribal relations. Without an act of
Congress, the Supreme Court has created complex and arcane preemption jurisprudence over the last two decades
that has enlarged the inherent authority of the states over matters affecting Indians in Indian country. [FN204] Even
as Congressional policy increasingly sought to protect the autonomy and self-determination of Indian tribes,
exercises of tribal sovereign authority were increasingly challenged in federal courts by state governments and
others. Unfortunately, states viewed themselves as the natural rivals of the tribes for authority over persons and
property in Indian country, whether they articulated this position or not. With Congress providing a less receptive
forum for such state claims, attention shifted to federal courts. Perhaps the single most important issue litigated in
Indian cases over the past quarter-century has been the propriety of state claims to jurisdiction in Indian country.
These assertions have included claims to civil and criminal adjudicatory authority, [FN205] regulatory power,
[FN206] and taxing authority. [FN207] Such claims have been made with respect to Indians [FN208] as well as nonIndians [FN209] *378 and have involved Indian-held property [FN210] as well as property held by non- Indians.
[FN211] Over the past quarter-century, hundreds of cases have litigated the exact parameters of these spheres of
authority. When the recent round of litigation began, the jurisdictional lines were clean and simple. Seeking to
minimize state control over Indian affairs, federal decisions then paralleled the decisions in favor of centralized
management of Indian affairs made by the British Crown in the Proclamation of 1763. Thus, in 1945, for example,
Justice Black declared "[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the
Nation's history." [FN212] Fourteen years later, he also declared:
The cases in this Court have consistently guarded the authority of Indian governments over their reservations.
Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is
to be taken away from them, it is for Congress to do it. [FN213]
Even so, the importance of centralized, federal authority in Indian affairs has yet to be fully realized in the
American legal system. Although Congress has not acted since Public Law 280 to transfer any further authority to
state governments, a stream of judicial decisions since 1960 has once again fragmented the management of Indian
affairs. Cases have recognized certain limited state authority in Indian country over the persons and property of nonIndians--and sometimes even non-member Indians, including those engaged in commerce with Indian tribes
[FN214]--and in some rare instances over even the tribal members themselves. [FN215] While Indian tribes, their
members, and their business associates have won many or most of these recent battles and often have successfully
resisted the imposition of state authority, [FN216] they actually have lost jurisdictional ground.
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*379 Judicial doctrines developed during this period have altered the minimal level of state authority previously
exercised in Indian country [FN217] by applying an extraordinarily complex and arcane set of preemption doctrines
in order to permit some limited state adjudication, regulation, and taxation of matters occuring in Indian country,
particularly where neither dominant Indian concerns nor federal interests are involved. For example, in Montana v.
United States, [FN218] the Court held that while tribes could not, states could regulate non-Indian activities on nonIndian owned land within Indian country where the tribal claim was not based on consensual relations with the tribe
or its members and where the activity in question neither threatened nor had any direct effect on the political
integrity, economic security, or *380 health and welfare of the tribe. [FN219] Similarly, in Moe v. Confederated
Salish and Kootenai Tribes, [FN220] the Court sustained the power of states to tax non-Indian purchases of
cigarettes at tribally-licensed smokeshops, even though the activity in question constituted commerce "with the
Indian tribes"--the very essence of the power the Constitution commits to Congress in the commerce clause of
article I, section 8, clause 3. [FN221] Furthermore, while Moe and other cases recognized the general inapplicability
of state taxes and similar regulations to Indians in Indian country, [FN222] the Moe Court nevertheless upheld state
regulations that required Indian smokeshop operators to keep certain sales records and pre-pay cigarette taxes on
anticipated cigarette sales to non-Indians. [FN223] Later cases relied on Moe to sustain the imposition of
considerably different and more onerous record-keeping requirements on Indian sellers. [FN224]
The Proclamation of 1763 is mentioned nowhere in any of these cases. The opinions were written as if the legal
questions presented were completely new, rather than recognizing the issues as continuing a political struggle over
the proper structure of the management of Indian affairs that is far older than the federal union. Both federal Indian
policy and the doctrines developed by the courts seem to approach jurisdictional and sovereignty questions in the
arena of Indian affairs as if the questions were entirely novel, ignoring what can be derived from careful historical
inquiry into the lessons of the past. Non- Indian demands for Indian resources and protests over the success of native
peoples in enforcing their legal rights to these resources have created renewed political pressure for the
expropriation or curtailment of Indian property rights and autonomy, pressure that only fuels the continuing demand
for expansion of state authority in Indian country. [FN225]
*381 CONCLUSION
George Santayana perceptively wrote, "Those who cannot remember the past are condemned to repeat it." [FN226]
In United States Indian policy, the Proclamation of 1763 is a critical--perhaps the critical--element of that past. The
Proclamation emerged from over a century of colonial confusion, mismanagement, and greed in the implementation
of Indian policy, and it sought to resolve such problems by restructuring relations between local Euro-American
colonial governments and Indian tribes. It established the British model for the management of Indian affairs in the
American colonies, emphasizing three key elements: (1) centralization of the management of trade, diplomatic, landcession, and other relations with the Indian tribes in agents and officials responsible to a central government in
combination with the diminution or elimination of all local authority over such matters; (2) long-term, effective
guarantees of Indian tribal land and resources, including hunting and fishing rights; and (3) protection of Indian
autonomy and sovereignty separated from local colonial authority. The United States, indeed, must have forgotten
the important colonial mistakes that produced the Proclamation of 1763, since we have been condemned to repeat
them over and over again! Unfortunately, the primary victims of our national historical myopia have been the Indian
peoples whom King George III sought to protect in the Proclamation of 1763 so that "[they] should not be molested
or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or
purchased by Us, are reserved to them, and any of them, as their Hunting Grounds . . . ." Indeed, then, as now, "great
Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests .
. . ." Thus, just as in 1763, "to prevent such Irregularities for the future, and to the end that the Indians may be
convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent," a stable federal
Indian policy is required that steadfastly protects the three key elements of the 1763 model: (1) national rather than
state implementation of relations with Indian tribes (the model of the Indian commerce clause); (2) federal
recognition and protection of the sovereignty and autonomy of Indian tribes; and (3) protection of Indian land and
resources, including hunting, fishing, food gathering, and water rights. Only by remembering the history and legacy
of the Proclamation of 1763 will this nation prevent a repetition of its dishonorable past in the field of Indian affairs.
[FNp] Copyright 1989 by Robert N. Clinton.
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[FN1] L. PETER, PETER'S QUOTATIONS: IDEAS FOR OUR TIMES 243 (1977).
[FN2] The complete text of the Proclamation of 1763 is set forth in 1 DOCUMENTS RELATING TO THE
CONSTITUTIONAL HISTORY OF CANADA 1759-1791 163-68 (A. Shortt & A. Dougherty, eds., 2d ed. 1918)
[hereinafter CANADIAN CONST. DOCS.] and in 3 W. WASHBURN, THE AMERICAN INDIAN AND THE
UNITED STATES 2135-39 (1973) and has been included as an appendix to this Article. Quoted references will be
made to CANADIAN CONST. DOCS.
[FN3] See Canada Constitution Act, 1982, § § 25-35 reprinted in 3 CONSTITUTIONS OF THE COUNTRIES OF
THE WORLD 114-15 (A. Blaustein & G. Flanz eds. 1988); Guerin v. The Queen, [1984] 2 S.C.R. 335, 382
(Dickson, J.); see also Slattery, Understanding Aboriginal Rights, 66 CANADIAN BAR REV. 727, 740 (1987)
(noting that common law principles "consolidated" in the Proclamation remain enforceable even in territories to
which the document does not directly apply); Slattery, The Hidden Constitution: Aboriginal Rights in Canada, 32
AM. J. COMP. L. 361, 368-74 (1984); Narvey, The Royal Proclamation of 1763: The Common Law, and Native
Rights to Land Within the Territory Granted to the Hudson's Bay Company, 38 SASK. L. REV. 123 (1974).
[FN4] See, e.g., Note, Indian Title: The Rights of American Natives in Lands They Have Occupied Since Time
Immemorial, 75 COLUM. L. REV. 655, 657 (1975) (claiming that the doctrine of aboriginal title "enunciated by
Chief Justice Marshall ... has never been seriously questioned by the Court in recent years").
[FN5] See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 588-605 (1823) (articulating and discussing the elements
of Indian title); see also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670 (1974) (emphasizing that
Indian title "is a matter of federal law and can be extinguished only with federal consent"); Tee-Hit-Ton Indians v.
United States, 348 U.S. 272, 279 (1955) (describing Indian title as "mere possession" and a "right of occupancy");
United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345 (1941) (recognizing aboriginal title when lands were
included in the Indians' ancestral home and were definable territory occupied exclusively by the Indians).
One Canadian judge recently articulated the concept of Indian title in some detail:
Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown.... [This
right] is personal in the sense that it cannot be transferred to a grantee, but ... the interest gives rise upon surrender to
a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering
Indians."
Guerin v. The Queen, [1984] 2 S.C.R. at 382 (Dickson, J.). See generally F. COHEN, HANDBOOK OF NATIVE
AMERICAN LAW 486-93 (1982 ed.) (describing varying views of aboriginal possession and Indian title)
[hereinafter F. COHEN, HANDBOOK]; Bennett, Aboriginal Title in the Common Law: A Stone Path Through
Feudal Doctrine, 27 BUFFALO L. REV. 617, 635 (1978) (concluding that Commonwealth courts should accept
native claims on the basis of immemorial possession); Berman, The Concept of Aboriginal Rights in the Early Legal
History of the United States, 27 BUFFALO L. REV. 637 (1978) (tracing the evolution of aboriginal rights doctrine
in United States Supreme Court decisions); Cohen, Original Indian Title, 32 MINN. L. REV. 28, 43-47 (1947)
(exploring the doctrinal origins of Indian title); Henderson, Unraveling the Riddle of Aboriginal Title, 5 AM.
INDIAN L. REV. 75 (1977) (setting forth a new theory for tribal title); Newton, At the Whim of the Sovereign:
Aboriginal Title Reconsidered, 31 HASTINGS L.J. 1215, 1215-16 n.5 (1980) (describing aboriginal title as "land
upon which the tribe has lived since 'time immemorial,"' and noting that "Indian title" can mean either aboriginal or
recognized title held by a tribe); Note, supra note 4.
The concept of aboriginal title is not unique to American Indian law. Spain and other colonial powers also adopted
the concept. See Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31 GEO. L.J. 1
(1942). More recently, it has been debated in Canada, Australia, and other common law jurisdictions. See, e.g.,
Milirrpum v. Nabalco Pty. Ltd., 17 F.L.R. 141 (Sup. Ct. N.Terr. 1971) (Australia); St. Catherine's Milling and
Lumbering v. The Queen, 13 S.C.R. 577, 601 (1887) (Ritchie, C.J., authored majority opinion) (claiming that by
extinguishing an Indian title claim the government simply removed an incumbrance from legal ownership of the
land); Calder v. Attorney Gen. of British Columbia, 34 D.L.R.3d 145, 148-68 (Sup. Ct. 1973) (dismissing Indians'
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appeal of a claim that their aboriginal title had never been lawfully extinguished); Isaac v. Davey, 5 O.R.2d 610, 620
(C.A. 1974) (leave to appeal granted Jan. 29, 1975) (noting that the Crown's interest in Indian title "became absolute
whenever the Indian title was surrendered or otherwise extinguished"); Attorney Gen. of Canada v. Morrow, [1973]
6 W.W.R. 150 (involving application for a writ of prohibition against deciding an Indian claim by virtue of
aboriginal rights); Regina v. Koonungnak, 45 W.W.R. 282, 302-09 (N.W.T. 1963) (recognizing Indians' and
Eskimos' aboriginal hunting rights); Regina v. White & Bob, 52 W.W.R. 193, 215-18 (B.C.App. 1964) (Norris, J.A.)
(comparing Canadian interpretation of aboriginal title with American and British views of Indian-occupied lands);
Regina v. Sikyea, 43 D.L.R.2d 150, 159-62 (N.W.T.App. 1964) (upholding game restrictions which conflicted with
Indians' hunting rights under treaty), aff'd, [1964] S.C.R. 642; In re Southern Rhodesia, [1919] App.Cas. 211 (P.C.
1918) (noting that where aboriginal tribes are "so low in the scale of social organizations that their usages and
conceptions of rights and duties are not to be reconciled with ... civilized society" that it would be idle to vest each
tribal member with a transferable property right and thereby "by fictional inheritance [make each member] a landed
proprietor 'richer than all his tribe"'); Tito v. Wadell, [1977] 2 W.L.R. 496 (Eng. Ch.) (discussing duties of the
Crown to Banaban inhabitants of Ocean Island); Regina v. Symonds, [1847] N.Z.P.C. 387, 390 (New Zealand);
Hoani Te Heuheu Tukino v. Aotea District Maori Land Bd., [1941] App.Cas. 308, 322-27 (P.C.) (New Zealand)
(dismissing argument by natives that a legislative act was void because it derogated native rights conferred by
treaty); Oyekan v. Adele, [1957] 1 W.L.R. 876, 880-84 (P.C.) (W. Afr. Ct. App.) (acknowledging native occupancy
rights of the new Oba of Lagos according to native law); Tijani v. Secretary of Southern Nigeria, [1921] 2 A.C. 399,
409-10 (P.C.) (Nigeria Sup. Ct.) (finding native title to be a "communal usufructory occupation which may be so
complete as to reduce any radical right in the sovereign to ... comparatively limited rights of administrative
interference").
[FN6] Sovereign right of first purchase refers to the exclusive rights that European explorers claimed over territory
they discovered in the New World. According to this policy, the first to discover new territory obtained instant
property rights against all other European explorers. These exclusive rights included the ability to "purchase" this
land from the Indians and to establish settlements on the land. M'Intosh, 21 U.S. (6 Wheat.) at 573.
[FN7] See Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835
were abandoned or ceded to the government).
) (recognizing aboriginal title until land rights
[FN8] S. PRUCHAS, HAKLUYTUS POSTHUMUS OR PRUCHAS HIS PILGRIMES 1814 (1625) quoted and
discussed in F. JENNINGS, THE INVASION OF AMERICA 132-34 (1975).
[FN9] See F. JENNINGS, supra note 8, at 132-34.
[FN10] See generally id.
[FN11] See generally id. at 300-312; 2 HENING, VIRGINIA STATUTES AT LARGE 326-28, 341-52 (1810)
(compilation of Virginia colonial statutes).
[FN12] In Massachusetts, the "praying Indian towns" were the product of missionary activity and military defeat.
Unlike the mission towns of the Spanish in California and Florida, however, the Massachusetts experiments were
sometimes the product less of individual conversion of Indian individuals than of the missionaries' ability to convert
the sachem--or leader of a band or tribe--who then brought followers to settle in such praying Indian towns. 2 N.
SHURTLEFF, RECORDS OF MASSACHUSETTS BAY 55-56 (1853); F. JENNINGS, supra note 8, at 243-44;
The tributory tribes of Virginia were established pursuant to treaty and statute after late seventeenth-century Indian
military defeats. This arrangement basically implemented feudal supervision of the tribes by the Virginia
government, with payment of tribute in exchange for certain land and other guarantees. 3 HENING, VA. STAT.
465-66 (1810); see also 2 HENING, supra note 11, at 138-39 (prohibiting certain land transactions between Indians
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and the English without state government's approval). See generally LAWS OF THE COLONIAL AND STATE
GOVERNMENTS, RELATING TO INDIANS AND INDIAN AFFAIRS (1832) (a compilation of the laws of
twenty-two states--including the original thirteen colonies--which impart extremely limited rights to "Indians,
Mulattos, and other people of color" while simultaneously proclaiming to be laws passed for the benefit and
protection of these peoples).
[FN13] 4 N. SHURTLEFF, supra note 12, at 176, 190, 198-99.
[FN14] Id. at 213.
[FN15] F. JENNINGS, supra note 8, at 130 n.8.
[FN16] Most of the proceedings in the Mohegan case are unpublished. The most thorough description of, and
collection of sources relative to, the case is found in J. SMITH, APPEALS TO THE PRIVY COUNCIL FROM
THE AMERICAN PLANTATIONS 422-42 (1950). See also J.W. DEFOREST, HISTORY OF THE INDIANS IN
CONNECTICUT 303-42, 447- 64 (1852); 1 B. TRUMBULL, HISTORY OF CONNECTICUT 412, 421-27 (1818);
Beardsley, The Mohegan Land Controversy, in 3 PAPERS OF THE NEW HAVEN COLONIAL HISTORICAL
SOCIETY 205-25 (1882). The factual description of the case in this chapter is based principally upon Smith's
narration of the litigation. Since Smith collects most of the primary historical citations, no further reference will be
made to the unpublished sources here.
[FN17] J. SMITH, supra note 16, at 434-35.
[FN18] See supra note 13 and accompanying text. See generally G. NAMMACK, FRAUD, POLITICS AND THE
DISPOSSESSION OF THE INDIANS 86-106 (1969) (explaining the Crown's early attempts to guide local officials
and how these policies differed wildly from actions of these officials); A. TRELEASE, INDIAN AFFAIRS IN
COLONIAL NEW YORK: THE SEVENTEENTH CENTURY 193-97 (1960) (noting that the governors of New
York were directed to buy large tracts of Indian land to both preempt violent conquest by settlers and pacify the
Indians over the loss of their lands).
[FN19] See, e.g., DOCUMENTS RELATIVE TO THE COLONIAL HISTORY OF THE STATE OF NEW YORK
(E.B. O'Callaghan, ed. 1854-56) [hereinafter N.Y. COL. DOCS.]: 4 N.Y. COL. DOCS. 2, 55, 84, 113, 118, 173-74,
198, 232-34, 275-76, 293, 341-42, 362- 67, 487-90, 590, 606-17, 684-85, 687-90, 712-46, 768, 782-83, 834, 888,
915-20, 928, 977-99, 1067-69, 1076-78; 5 N.Y. COL. DOCS. 64-65, 168, 237-38, 252-53, 351, 371, 382-89, 41518, 420, 436, 458, 475-76, 483, 538, 541, 549-50, 558, 573, 577-78, 586-87, 632-40 (correspondence from colonial
governors and officials to the London Committee of Trade and the Lords of Trade). But cf., 4 N.Y. COL. DOCS.
632, 699- 701, 772, 842-43; 5 N.Y. COL. DOCS. 165, 174, 430-35 (unusual correspondence from the Lords of
Trade to colonial governors).
[FN20] See, e.g., 4 N.Y. COL. DOCS., supra note 19, at 698-700; 5 N.Y. COL. DOCS., supra note 19, at 458, 46768, 572-73, 583, 644-45 (letters requesting aid from the crown).
[FN21] The Board of Trade, also known as the Lords of Trade, the Council of Trade, the Lords of Trade and
Plantations, or the Lords Commissioners of Trade and Plantations, was established in 1696 by William III to
centralize the administration of trade and commerce in England and its colonies. I. STEELE, POLITICS OF
COLONIAL POLICY: THE BOARD OF TRADE IN COLONIAL ADMINISTRATION, 1696- 1720 xiii n.1, 3
(1968); A. BAYSE, THE LORDS COMMISSIONERS OF TRADE AND PLANTATIONS, COMMONLY
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KNOWN AS THE BOARD OF TRADE, 1748-1782 1-5 (1925). The Board of Trade, a committee of the Privy
Council, had no power to act on its own, only the power to study, investigate, and make recommendations. A.
BAYSE, supra, at 4- 5. "The board became . . . the clearing house for every sort of business relating to trade and the
colonies, and its records became a storehouse, a veritable mine, of information that was needed by every department
of government." Id.
The title "Board of Trade" distinguishes the body of advisors which functioned from 1696 to 1782 from its
predecessor committee, the "Lords of Trade," which functioned from 1675 to 1696. I STEELE, supra, at xiii n.1. See
R. BIEBER, THE LORDS OF TRADE AND PLANTATIONS, 1675-1696 (1919) (describing the functions of the
predecessor committee to the Board of Trade). The title "Lords of Trade and Plantations" or "Lords of Trade" is
used in many sources to refer to both the earlier and the later advisory groups. I. STEELE, supra, at xiii n.1.
[FN22] By 1709, the dispute with the French over control of trade with the Five Nations Iroquois Confederation was
already evident. In that year, the Board of Trade, noting French claims of authority over the Five Nations,
transmitted to the Queen a memorandum which detailed the history of the Crown's claim to sovereignty over the
Five Nations. See 5 N.Y. COL. DOCS., supra note 19, at 74-77. The Board reported that "it is absolutely necessary
for the security of the Province of New York, and the rest of your Majesty's Dominions in that part of America that
the five Nations of Indians be preserved and maintained in their subjection to the Crown of Great Britain as
formerly." Id. at 74; see also 4 N.Y. COL. DOCS., supra note 19, at 353 (detailing a British colonel's representation
as to the English right over the Iroquois). The colonial governors of New York regularly met with the Iroquois and,
after 1710, these conferences reflect repeated efforts to repress French influence over the Indians. See, e.g., 4 N.Y.
COL. DOCS., supra note 19, at 20-24, 407- 09, 896-911, 978-99; 5 N.Y. COL. DOCS., supra note 19, at 217-29,
265-77, 382- 89, 437-47, 484-93, 635-40, 657-81, 713-25, 786-801, 859-70, 962-70 (conference reports between
colonial governors and Indians); see also 4 N.Y. COL. DOCS., supra note 19, at 243-49, 491-501, 562-73, 654-61,
691-96, 798-807, 896-910 (proceedings of the Albany Commissioners of Indian Affairs). Article XV of the Treaty
of Utrecht of 1713 recognized that the Iroquois were "subject to the Dominion of Great Britain." Treaty of Utrecht
of 1713, reprinted in 1 MAJOR PEACE TREATIES OF MODERN HISTORY, 1648-1967 210-11 (F. Israel, ed.
1967). This treaty, however, also provided for free access to the Indians by both the British and French and assured
that the Indians could "resort, as they please, to the British and French Colonys, for promoting trade on one side and
the other, without any Molestation or Hindrance . . . ." Id. Despite these assurances, French influence became a
constant source of English colonial concern, as the correspondence from the colonial governors to the Board of
Trade reflects. See, e.g., 5 N.Y. COL. DOCS., supra note 19, at 42-43, 64-66, 85-87, 174, 237-38, 252-56, 414-15,
430-32, 456-57, 467-69, 475-77, 549-51, 559-61, 570-73, 586-87, 655-57.
For excellent surveys of the history of Iroquois relations with the colonial powers and reviews of both the primary
documents and the secondary literature, see, F. JENNINGS, EMPIRE OF FORTUNE: CROWN, COLONIES &
TRIBES IN THE SEVEN YEARS WAR IN AMERICA (1988); F. JENNINGS, THE AMBIGUOUS IROQUOIS
EMPIRE: THE COVENANT CHAIN CONFEDERATION OF INDIAN TRIBES WITH ENGLISH COLONIES
FROM ITS BEGINNINGS TO THE LANCASTER TREATY OF 1744 (1984); THE HISTORY AND CULTURE
OF IROQUOIS DIPLOMACY (F. Jennings & W. Fenton eds. 1985); B. GRAYMONT, THE IROQUOIS IN THE
AMERICAN REVOLUTION (1972).
[FN23] See N.Y. COL. DOCS., supra note 19, at 655-81 (transcripts o f the conference between Governor Burnet
and the Indians).
[FN24] See id. at 665.
[FN25] Id. at 698.
[FN26] Id. at 711-25.
[FN27] Id. at 623-27.
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[FN28] Id. at 627. The report also called for increased missionary activity among the Indians, encouragement of
intermarriage with the native population, treaties and alliances with the Indian nations, and efforts to protect friendly
tribes against the depredations of other tribes allied with the English Crown. Id. at 626-27. Trade was to be fostered
as a means "to the increase of your Majesty's power & Interest in America." Id. at 626. The Indian trade was to be
free in all parts of the colonies, monopolies discouraged, and forts and garrisons built to protect trade routes west of
the Appalachians. The report specifically directed that "[a]ll your Majesty's Governors, in their respective
governments, should use their utmost endeavours to prevent the traders from imposing upon the Indians; upon
complaint of any injustice done them, cause satisfaction to be made . . . ." Id.
[FN29] An Act for the Encouragement of the Indian Trade, 2 COLONIAL LAWS OF N.Y. 8 (1720); see also 5
N.Y. COL. DOCS., supra note 19, at 577-78, 684-85 (reporting the success of the Indian trade legislation in
attracting Indian trade to Albany).
[FN30] See 2 COLONIAL LAWS OF N.Y., supra note 29, at 150, 197, 248 ; see also 5 N.Y. COL. DOCS., supra
note 19, at 682-83, 764-66, 773, 775, 781-82 (reporting revisions and support for the Indian trade legislation of
1720).
[FN31] See 5 N.Y. COL. DOCS., supra note 19, at 706-09 (correspondence between Duke of Newcastle, the Lords
of Trade, and Governor Burnet).
[FN32] Id. at 684-85, 709, 734.
[FN33] Id. at 726-33.
[FN34] Id. at 733.
[FN35] Id. at 740-44.
[FN36] Id. at 745-57 (transcripts of these proceedings).
[FN37] Id. at 751-54.
[FN38] Id. at 763.
[FN39] See id. at 760-63.
[FN40] See, e.g., id. at 764-65 (Letter from Burnet stating "[w]hile I am doing my utmost to encrease our
correspondence with the Indians, and to draw them from their dependence on Canada, I cannot but complain of the
great pains taken by the Merchants in London animated by their correspondents from hence, to defeat so good
purposes").
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[FN41] See, e.g., 2 COLONIAL LAWS OF N.Y., supra note 29, at 109, 150, 248, 281, 287.
[FN42] See 5 N.Y. COL. DOCS., supra note 19, at 897-99; see also id . at 899- 901 (opinion of Attorney General
Bradley opposing the New York Indian trade acts).
[FN43] See, e.g., id. at 960-62; 6 N.Y. COL. DOCS., supra note 19, at 6, 14-16, 25, 57-62, 67-69 (correspondence
between Britain and the colonies discussing land dispute with the Mohawks and demanding the deeds be forwarded
to the Crown). Describing this land dispute with the Mohawks, one commentator states that Albany officials tricked
the Mohawks into deeding their land to Albany in trust. When the Indians requested that the trust be revoked,
Albany officials claimed that in fact there was no trust, that the Indians had simply conveyed their land to Albany.
The King intervened, recognizing the trust and investigating the matter through Governor William Cosby of New
York.See G. NAMMACK, supra note 18, at 22-28.
[FN44] See 6 N.Y. COL. DOCS., supra note 19, at 137-38.
[FN45] Id. at 138.
[FN46] Id. at 156-57, 169, 199.
[FN47] See id. at 172-79 (discussing Clarke's 1740 conference with the Iroquois).
[FN48] Id. at 211-12.
[FN49] Id. at 148, 242-43.
[FN50] Id. at 230-42 (correspondence among governors and the Commissioners of Indian Affairs discussing the
attack and citing the Iroquois as the cause, and transcripts of debates between Indians and colonial officials on this
point).
[FN51] Id. at 239-42.
[FN52] See H. WARD, UNITE OR DIE: INTERCOLONY RELATIONS 1690-1763 5 6 (1971) (noting that "news
reached America in June 1744 of the British declaration of war upon France").
[FN53] See 6 N.Y. COL. DOCS., supra note 19, at 282.
[FN54] Id. at 289-305.
[FN55] See id. at 292-95.
[FN56] Id. at 302.
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[FN57] Id. at 302-03.
[FN58] See id. at 303-05.
[FN59] Id. at 314.
[FN60] Id.
[FN61] See, e.g., id. at 314, 331-40, 350-57, 365-74, 378-82, 614-703 (correspondence and reports indicating that
Governor Clinton and the Assembly were in frequent disagreement and that Governor Clinton had suspended certain
Assembly members).
[FN62] Apparently, the Assembly refused to support the Indians in war and curtailed funding for Indian war efforts.
See id. at 314, 371-74.
[FN63] See, e.g., id. at 603, 605-07, 703-05, 708-11 (correspondenc e between Governor Clinton and the governors
of South Carolina, New Hampshire, and Georgia as well as letters to the Lords of Trade from Clinton informing
them of his plans for the conference).
[FN64] Id. at 717-26 (transcript and notes from this conference).
[FN65] Id.
[FN66] G. NAMMACK, supra note 18, at 39 (quoting A. KENNEDY, THE IMPORTANCE OF GAINING AND
PRESERVING THE FRIENDSHIP OF THE INDIANS TO THE BRITISH INTEREST CONSIDERED 7 (1751)).
[FN67] Hendrick recited the history of their alliance with the British but noted repeated instances where the Albany
Commission failed to protect Indian interests. He pointed to numerous and severe losses of Indian life and land and
demanded redress of his nation's grievances, threatening to sever the alliance that bound the Iroquois to New York. 6
N.Y. COL. DOCS., supra note 19, at 781- 88.
[FN68] See id. at 805-15 (describing the surprise and affront of colonial representatives to Hendrick's speech and
reproducing his subsequent speech to other tribes following his declaration of severance from Crown allegiance).
[FN69] Id. at 799; see also id. at 794-95 (letter of August 28, 175 3 from the Earl of Holdernesse to the governors in
America expressing concern over the possibility of an Indian uprising). The Earl warned the governors that they
should keep up an exact correspondence with all His Majesty's Governors on the Continent; and in case you shall
be informed by any of them, of any hostile attempts, you are immediately to assemble the general assembly within
your Government, and lay before them, the necessity of a mutual assistance . . . .
Id.
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[FN70] Id. at 845.
[FN71] Id. at 846.
[FN72] The proceedings of the Albany Congress and related documents are set forth at 6 N.Y. COL. DOCS., supra
note 19, at 850-92.
[FN73] See id. at 853-56, 858-65.
[FN74] Id. at 889.
[FN75] Id. at 890.
[FN77] Id. at 885-88.
[FN79] See id.
[FN80] Id. at 864-77, 879-85.
[FN81] Id. at 850.
[FN82] Id. at 852, 897-99.
[FN83] Id. at 898.
[FN84] See generally P. WRAXALL, ABRIDGMENT OF THE NEW YORK INDIAN RECORDS 1678-1731 (C.
McIlwain ed. 1915). See also 7 N.Y. COL. DOCS., supra note 19, at 14-31 (subsequent letter and memorandum
from Wraxall to Sir William Johnson regarding the management of British Indian affairs in North America).
[FN85] See 6 N.Y. COL. DOCS., supra note 19, at 901-03 (presentatio n of the Board's plan to his Majesty). In
England, John Pownall, secretary to the Board of Trade, had authored a report entitled Considerations Towards a
General Plan of Measures for the Colonies in which he suggested, among other things, the necessity of vesting the
power over Indian affairs in a single office or agent and of establishing defensive forts to resist French influence. Id.
at 893- 97.
[FN86] Id. at 902.
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[FN87] Id.
[FN88] Id.
[FN89] Id. at 916-20.
[FN90] Id. at 919.
[FN91] See id. at 920-22, 930-34, 961-63. See generally F. PRUCHA, AMERICAN INDIAN POLICY IN THE
FORMATIVE YEARS 11-13 (1962).
[FN92] F. PRUCHA, supra note 91, at 11.
[FN93] 6 N.Y. COL. DOCS., supra note 19, at 801.
[FN94] 7 N.Y. COL. DOCS., supra note 19, at 77-79.
[FN95] See id. at 7-14, 29-31, 86-91. Governor Shirley had succeede d the late General Braddock, who had
originally appointed Sir William Johnson, as commander of the British forces in North America. Perceiving that
Johnson had acted pursuant to a commission from Braddock rather than under authority of a royal commission
issued through Braddock, Shirley purported to reappoint Johnson under his own authority. 6 N.Y. COL. DOCS.,
supra note 19, at 1024-28. Johnson protested this arrangement, stating that his authority derived directly from a royal
commission which he understood had been transmitted to General Braddock but never ultimately delivered back to
Johnson. See, e.g., id. at 1027. This ambiguity in Johnson's authority was clarified when a new royal commission
was prepared and transmitted to Johnson on March 13, 1756. 7 N.Y. COL. DOCS., supra note 19, at 76-77.
[FN96] 7 N.Y. COL. DOCS., supra note 19, at 3.
[FN97] Id. at 88-89. The conference was eventually held, however, and its results appeared promising. See id. at
118-19 (letter from Johnson to the Board of Trade describing the conference and its apparent success).
[FN98] Id. at 276-79.
[FN99] TF. JENNINGS, EMPIRE OF FORTUNE, supra note 22, at 271-74.
[FN100] Id. at 276.
[FN101] Id. at 277.
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[FN102] Id. at 276-81.
[FN103] Id. at 280.
[FN104] Id. at 342.
[FN105] Id. at 345.
[FN106] Id. at 346.
[FN107] Id. at 396.
[FN108] Id. at 396-97.
[FN109] Id. at 402.
[FN110] Id. at 403.
[FN111] Id.
[FN113] Id. at 377.
[FN114] Id.
[FN115] Id.
[FN116] See, e.g., id. at 129-30, 276-333, 377, 432-37; see also id . at 77-79 (letters from the Board of Trade
expressing the need to nullify fraudulent patents to Indian lands). See generally G. NAMMACK, supra note 18,
passim.
[FN117] 7 N.Y. COL. DOCS., supra note 19, at 471-81 (Board's report and subsequent approval).
[FN118] Id. at 474.
[FN119] Id. at 478.
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[FN120] Id. at 478-81.
[FN121] See id. at 488-89, 502-03, 522-27, 530-35.
[FN122] See G. NAMMACK, supra note 18, at 93-94 (stating that northwestern tribes, such as the Seneca of the
Iroquois Confederacy, joined forces with Pontiac).
[FN123] F. PRUCHA, supra note 91, at 15-16. Actual authorship of th e plan has sometimes been attributed to
Henry Ellis. Id. at 16.
[FN124] Id. at 17.
[FN125] 7 N.Y. COL. DOCS., supra note 19, at 572-84, 602-07; see also id. at 593-94 (suggestions of Lieutenant
Governor Colden on management of Indian affairs, including the need to make peace with the northwestern tribes
and to properly regulate trade there).
[FN126] Id. at 575.
[FN127] F. PRUCHA, supra note 91, at 14.
[FN128] Id. at 13-20; see supra note 2.
[FN129] CANADIAN CONST. DOCS., supra note 2, at 164-68.
[FN130] Id. at 166.
[FN131] Id. at 167.
[FN132] See Mitchel v. United States, 34 U.S. (9 Pet.) 711, 715 (1835) (recognizing provision in the treaty of
cession between the United States and Spain authorizing governors of East and West Florida to make grants of
Indian lands); see also Winn v. Patterson, 34 U.S. (9 Pet.) 663, 680 (1835) (invalidating portion of land grant which
was within exclusive Indian territory but upholding rest of the grant); Patterson v. Jenckes, 27 U.S. (2 Pet.) 216,
235-36 (1829) (holding that under Georgia legislature's Act of Feb. 1807, "Georgia was willing to grant all the lands
as far as the Indian boundary, but unwilling to pass that line"); Danforth v. Wear, 22 U.S. (9 Wheat.) 673, 677
(1824) (holding that acts of North Carolina assembly that invalidated land grants within Indian territory did not bar
grants outside this territory).
[FN133] CANADIAN CONST. DOCS., supra note 2, at 167-68.
[FN134] Id. at 167.
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[FN135] See supra note 43.
[FN136] CANADIAN CONST. DOCS., supra note 2, at 168.
[FN137] Id.
[FN138] 8 N.Y. COL. DOCS., supra note 19, at 19-34, 35-36, 101-03.
[FN140] Id. at 635-41.
[FN141] Id. at 637.
[FN142] Id. at 638.
[FN143] Id. at 638-39.
[FN144] Id. at 639.
[FN145] Id. at 641.
[FN146] Id. at 834-43. For Sir William Johnson's initial favorable response to the 1764 plan for managing Indian
affairs, see id. at 657-66, 670-75, 711-18.
[FN147] Id. at 951-78; see also id. at 985-92, 997-1003.
[FN148] 8 N.Y. COL. DOCS., supra note 19, at 19-31, 55-58.
[FN149] See, e.g., id. at 55-56, 81-82, 100-01, 144-45, 165, 211-12 , 246-47, 253-54 (letters encouraging colonial
officials to maintain active control over Indian affairs and communicating concern over less than enthusiastic efforts
by these officials).
[FN150] See, e.g., 5 COLONIAL LAWS OF N.Y., supra note 19, at 66; 8 HENING, supra note 11, at 367-68.
[FN152] Id. at 254.
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[FN153] Id. at 288; see also 8 HENING, supra note 11, at 367 (marginal note indicating the Virginia
Commissioners' statutory authority was revoked by proclamation on September 25, 1771).
[FN154] See, e.g., 8 N.Y. COL. DOCS., supra note 19, at 183-86, 203-04, 222- 23, 224-44, 262-64, 280-81, 290-93,
300-01, 314-17, 340-41, 361-69, 395-97, 421- 30, 459-67; see also id. at 471-84, 489-91, 494-506, 515-27, 533-42,
570 (correspondence emphasizing need to quell Indian unrest).
[FN155] Id. at 287; see also id. at 302 (letter from the Earl reiterating his regret at leaving resolution of trade to the
individual colonies).
[FN156] Id. at 261.
[FN157] See supra note 16.
[FN158] For an excellent survey of the effect that trade and diplomacy with the English colonies had on political,
legal, and social structures of the Cherokee Nation, see J. REID, A BETTER KIND OF HATCHET (1976) and J.
REID, A LAW OF BLOOD (1970).
[FN159] 31 U.S. (6 Pet.) 515 (1832).
[FN160] Id. at 547.
[FN161] [1984] 2 S.C.R. 335.
[FN162] Id. at 375-90.
[FN163] See Kruger v. The Queen, [1985] 17 D.L.R.4th 591, 598 (Heald, J.) (holding that the Crown has a
fiduciary duty throughout the process of expropriating land for airport purposes, including dealings between the
Crown and the Indians with respect to compensation for land).
[FN164] United States v. Mitchell, 463 U.S. 206, 228 (1983) (inferring fiduciary duties from specific statutes at
issue); United States v. Mitchell, 445 U.S. 535, 543-44 (1980) (holding that the General Allotment Act created only
a limited trust relationship between the United States and the allottees that did not impose any duty upon the
government to properly manage timber resources).
[FN165] Guerin, [1984] 2 S.C.R. at 376-82.
[FN166] 348 U.S. 272 (1955). For an excellent criticism of Tee-Hit-Ton, see Newton, supra note 5.
[FN167] Slattery, Understanding Aboriginal Rights, supra note 3, at 777- 78.
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[FN168] British North America Act § 91 (24) (1867).
[FN169] See R.S.C. ch. 98 § 6 (1927).
[FN170] See Kruger v. The Queen, [1978] 1 S.C.R. 104, 109-11 (holding that while there may be no statute of the
Provincial Legislature which deals directly with Indians and their lands, "there is no reason why general legislation
may not affect them").
[FN171] See, e.g., Cardinal v. Attorney Gen. of Alberta, [1974] S.C.R. 695, 710 (holding that § 12 of the Alberta
Natural Resources Agreement of 1929 made the provisions of the generalWildlife Act applicable to all Indians,
including those on Reserves).
[FN172] See, e.g., The Queen v. Sutherland, [1980] 2 S.C.R. 451
326.
, 455; Dick v. The Queen, [1985] 2 S.C.R. 309,
[FN173] See Four B Manufacturers v. United Garment Workers, [1980] 1 S.C.R. 1031, 1048-49 (reiterating that
provincial laws apply to Indians only to the extent that they are of general application and do not single out Indians
and only to the extent that they are not preempted by valid federal law); Derrickson v. Derrickson, [1986] 1 S.C.R.
285, 296; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751, 756.
[FN174] Porterfield v. Clark, 43 U.S. (2 How.) 76, 105 (1844) (citing the Proclamation as possibly preventing
transfer of complete title to certain lands); United States v. Fernandez, 35 U.S. (10 Pet.) 303, 304 (1836)
(recognizing that the Proclamation authorizes provincial governor power to grant certain lands to soldiers and
military officers); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 738 (1835) (discussing the Proclamation's
importance in early Florida law); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 548 (1832) (citing the Proclamation as
evidence of Britain's policy of treating Indians as separate self-governing entities); Johnson v. M'Intosh, 21 U.S. (8
Wheat.) 543, 594 (1823) (citing the Proclamation as indirect support for denying title where Proclamation strictly
forbade British subjects from taking possession of the land in question from the Indians); Fletcher v. Peck, 10 U.S.
(6 Cranch) 87, 140-41 (1810) (interpreting the Proclamation as a temporary arrangement that did not alter Georgia's
boundaries or future rights to dispose of property therein). More recently, the Proclamation of 1763 has been cited in
a number of eastern Indian land claims cases. See e.g., Oneida Indian Nation of New York v. New York, 691 F.2d
1070, 1076-77 (2d Cir. 1982) (praising the Proclamation as both a background and a model for early Congressional
enactments of Indian policy); Mohegan Tribe v. Connecticut, 638 F.2d 612, 615-16 (2d Cir. 1980) (noting that the
Proclamation's boundary line was adopted in the Congressional Resolve of 1783). See generally Clinton & Hotopp,
Judicial Enforcement of the Federal Restraints on Alienation of Indian Lands: The Origins of the Eastern Land
Claims, 31 ME. L. REV. 17, 22-23 (1979).
The Court has also cited the Proclamation of 1763 with reference to border and land grant disputes, particularly in
those areas formerly within the territories of East and West Florida organized under the Proclamation. See, e.g.,
Coffee v. Groover, 123 U.S. 1, 11 (1887); United States v. Heirs of Rillieux, 55 U.S. (14 How.) 189, 191 (1852);
Howard v. Ingersoll, 54 U.S. (13 How.) 381, 403, 406-07 (1851).
[FN175] See South Carolina v. Catawba Indian Tribe of South Carolina, 476 U.S. 498, 513 (1986) (Blackmun, J.,
dissenting); United States v. Sioux Nation of Indians, 448 U.S. 371, 435 (1980) (Rehnquist, J., dissenting).
[FN176] 31 U.S. (6 Pet.) 515, 548-49 (1831). In Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835), the Court
discussed the powers of the British governors to issue patents to Indian lands within the boundaries of West Florida
during British rule from 1763 to 1783, emphasizing the historical significance of the Proclamation. Id. at 746-71,
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756. Because the land grants within Indian territory at issue in Mitchel were made by governors long after the end of
British authority in the area, however, the Proclamation was not thought dispositive of the issue. Id. at 738-39; see
also United States v. Fernandez, 35 U.S. (10 Pet.) 303, 304 (1836) (further discussing the authority under the
Proclamation of 1763 of the British governors within East and West Florida to issue land grants within Indian
domains).
[FN177] Article IX of the Articles of Confederation provided:
The United States, in Congress assembled, shall . . . 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 legislative
right of any State within its own limits be not infringed or violated.
ARTICLES OF CONFEDERATION, art. IX (1777), reprinted in 9 JOURNALS OF THE CONTINENTAL
CONGRESS, 1774-1789 919 (1907) (edited from the original records in the Library of Congress). Because of the
ambiguous nature of this grant of authority to the central government, national initiatives in the area of Indian affairs
were persistently frustrated during the confederation period by competing claims of state authority within state
boundaries. When the Continental Congress tackled the problem of Indian land cessions, the most they could secure
by the required extraordinary consensus was a resolution that applied outside the territorial limits of the states:
[T]he United States in Congress assembled . . . do hereby prohibit and forbid all persons from making settlements
on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular State, and from
purchasing or receiving any gift or cession of such lands or claims without the express authority and directions of
the United States in Congress assembled.
And it is moreover declared, that every 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, cession, or
settlement.
25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789 602 (1922) (edited from the original records in
the Library of Congress).
[FN178] Article I, section 8, clause 3 of the Constitution was deliberately designed to remove any competing claims
of state authority over Indian affairs even within state boundaries. In 1790, Congress imposed a restraint on
alienation of Indian lands that expressly applied to land cessions made to the states. Act of July 22, 1790, ch. 33, §
4, 1 Stat. 137. For a discussion of the history of early American laws restraining Indian land cessions, including
discussions of the various land restraints contained in Indian Trade & Intercourse Acts, see Clinton & Hotopp,
supra, note 174, at 19-46. For a general discussion of Indian Trade & Intercourse Acts, see F. PRUCHA, supra note
91, passim.
[FN179] See e.g., Treaty with the Cherokees, Nov. 28, 1785, arts. V , XII, XIII, 7 Stat. 18 (providing that no U.S.
citizen would settle on Indian lands and that "the hatchet will be forever buried" in pursuit of perpetual peace and
friendship); Treaty with the Delawares, Sept. 17, 1778, arts. IV, VI, 7 Stat. 13 (reaching agreement to inflict
punishment only after a fair trial and guaranteeing acknowledgement of territorial rights set forth in earlier treaties).
[FN180] Clinton, Book Review, 47 U. CHI. L. REV. 846, 854-56 (1980) (reviewing R. BARSH & J.
HENDERSON, THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY (1980)) (discussing various sources
of resistance to centralized management of Indian affairs).
[FN181] Id. at 855.
[FN182] 33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789 457-59 (1936) (edited from the
original records in the Library of Congress).
[FN183] NOTES OF THE DEBATES IN THE FEDRAL CONVENTION OF 1787 142 (reported by James
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Madison) (indexed ed. 1984) (2d ed. 1893).
[FN184] THE FEDERALIST NO. 42, at 306 (B. Wright ed. 1961). See generally Clinton & Hotopp, supra note 174,
at 23-49 (discussing confederation and early constitutional periods).
[FN185] See Clinton & Hotopp, supra note 174, at 42-49.
[FN186] See, e.g., South Carolina v. Catawba Indian Tribe of South Carolina, 476 U.S. 498 (1986) (holding that
statute of limitations bars claim by Catawba Indians that an 1840 conveyance of 225 acres of land to South Carolina
was void under the Nonintercourse Act); County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (statute of
limitations does not ban Oneida claim to land sold to New York in violation of the Nonintercourse Act); Oneida
Indian Nation v. County of Oneida, 414 U.S. 661 (1974) (claimed violation of Nonintercourse Act states a claim
arising under federal law); Mashpee Tribe v. Secretary of the Interior, 820 F.2d 480 (1st Cir. 1987) (holding that the
Indians seeking recognition of their aboriginal title failed to establish tribal status necessary for claims of aboriginal
title); James v. Bellotti, 733 F.2d 989 (1st Cir. 1984) (contesting a settlement reached in connection with Indian land
claims between town of Gay Head and the Wampanoag Tribal Council); James v. Watt, 716 F.2d 71 (1st Cir. 1983)
(challenging past transfers of Indian lands by tribe and individual tribal members), cert. denied sub nom, James v.
Clark, 467 U.S. 1209 (1984); Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1980), cert. denied, 452 U.S.
968 (1981), on remand, 528 F.Supp. 1359 (D. Conn. 1982) (holding that state's title to Indian land is void where the
state received title from a grantor who failed to obtain federal government approval for the original grant); Mashpee
Tribe v. Town of Mashpee, 447 F.Supp. 527 (D. Mass. 1978) (dismissing action for recovery of lands alienated from
the tribe where plaintiff had failed to establish tribal status under the Nonintercourse Act), aff'd sub nom., Mashpee
Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.), cert. denied, 444 U.S. 866 (1979); Mashpee Tribe v. New
Seabury Corp., 427 F.Supp. 899 (D. Mass. 1977) (denying town's motion to dismiss in a class action brought by
Indian tribe seeking declaration ofright to possession of certain lands); Schaghticoke Tribe v. Kent School Corp.,
423 F.Supp. 780 (D. Conn. 1976) (granting in part motion to amend complaint seeking to regain possession of
hundreds of acres of land allegedly alienated in violation of the Nonintercourse Act and Connecticut state law);
Narragansett Tribe v. Southern Rhode Island Land Dev. Corp., 418 F. Supp. 798 (D. R.I. 1976) (ruling on motions
claiming title to land allegedly acquired by defendants in violation of the Nonintercourse Act); Joint Tribal Council
of the Passamaquoddy Tribe v. Morton, 388 F.Supp. 649 (D. Me. 1975) (holding that the Nonintercourse Act
applied to transactions with tribe even though the tribe was never federally recognized by a treaty), aff'd, 528 F.2d
370 (1st Cir. 1975).
One important and protracted case among eastern Indian land claims cases illustrates both the tensions provoked by
state actions against Indian lands and the procedural complexities that contributed to the growing resentment on both
sides of the dispute. Oneida Indian Nation of New York v. New York, 520 F.Supp. 1278 (dismissing Indians'
challenge to the validity of certain land cession treaties entered in 1785 and 1788 with the State of New York), rev'd
in part, 691 F.2d 1070 (2d Cir. 1982) (requiring evidentiary hearing before resolution of issues that require
interpretations of treaties or the Articles of Confederation), on remand sub nom., Oneida Indian Nation of Wisconsin
v. New York, 102 F.R.D. 445 (N.D.N.Y. 1983) (denying motion to intervene by another tribe of the Six Nations
Iroquois Confederacy), rev'd, 732 F.2d 261 (2d Cir.) (holding that right to intervene must be granted since under
ancient organic law the confederacy rather than its constituent nations held land title and therefore had the sole right
to sue), appeal after remand, 732 F.2d 259 (2d Cir.), on remand, 102 F.R.D. 450 (N.D.N.Y. 1984), cause remanded
sub nom., Oneida of the Thames Band v. New York, 757 F.2d 19 (2d Cir.), mandate denied, 771 F.2d 51 (2d Cir.
1985), cert. denied, 474 U.S. 823, on remand, 649 F.Supp. 420 (N.D.N.Y. 1986) (holding that Congress had neither
the authority nor the intent in entering these treaties and issuing the Proclamation of 1783 to prohibit states from
purchasing Indian lands within their borders and therefore New York had lawfully acquired title to the majority of
the land at issue).
[FN187] See, e.g., Act of Dec. 19, 1829 (Georgia) (expropriating Cherokee lands as Georgia state territories under
state laws), repealed in part by 1962 Ga. Laws 154; Act of Dec. 23, 1830 (Georgia) (declaring void all contracts
"hereafter made with the Cherokee Indians"), repealed by 1962 Ga. Laws 156; Act of Dec. 22, 1830 (Georgia)
(preventing Cherokees from exercising direct or agency power over certain lands), repealed by 1962 Ga. Laws 347.
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[FN188] Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832); see also supra notes 159-160 and accompanying
text.
[FN189] Indian Removal Act, ch. 148, 4 Stat. 411 (1830). See generally G. FOREMAN, INDIAN REMOVAL
(1953) (recounting federal removal of southern Indian tribes to the West during Andrew Jackson's presidency); G.
FOREMAN, THE FIVE CIVILIZED TRIBES (1934) (detailing the Indians' struggle to adapt to alien influences
during and after federal removal and their efforts to maintain a sense of control and culture); F. PRUCHA, supra
note 91, at 212-49; F. COHEN, HANDBOOK, supra note 5, at 78-92.
[FN190] See F. COHEN, HANDBOOK, supra note 5, at 92.
[FN191] See CANADIAN CONST. DOCS., supra note 2, at 166-68; F. COHEN, HANDBOOK, supra note 5, at
62-64.
[FN192] Dawes General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified as amended in scattered sections of
25 U.S.C.).
[FN193] Id. at § 1 (codified at 25 U.S.C. § 331 (1982)).
[FN194] Id. at § 6 (codified at 25 U.S.C. § 349 (1982)); see Readjustment of Indian Affairs, Part 9: Hearings on
H.R. 7902 Before the House Committee on Indian Affairs, 73d Cong., 2d Sess. 428-79 (1934) (incorporating D.
Otis's unpublished work, History of the Allotment Policy, in the record and tracing allotment policy's development).
[FN195] F. COHEN, HANDBOOK, supra note 5, at 138.
[FN196] See SPECIAL SUBCOMM. ON INDIAN EDUCATION, INDIAN EDUCATION: A NATIONAL
TRAGEDY--A NATIONAL CHALLENGE, S. REP. NO. 501, 91st Cong., 1st Sess. 146-52 (1969) (discussing the
methods and consequences of reformist efforts to "educate" Indians during the late nineteenth and early twentieth
centuries).
[FN197] See United States v. Clapox, 35 F. Supp. 575, 577 (D. Or. 1888) (upholding federal authority to
promulgate special rules and punishment for "Indian offenses"); W. HAGAN, INDIAN POLICE AND JUDGES
(1980) (discussing development of an Indian police system and its role in "acculturating" Indians).
[FN198] Indian Reorganization Act, Pub. L. No. 383, ch. 576, 48 Sta t. 984 (1934) (codified at 25 U.S.C. § § 461479 (1982)) (articulating programs to conserve and develop Indian lands and resources and providing incentives for
development of Indian commerce and education).
[FN199] See, e.g., Act of Oct. 5, 1949, Pub. L. No. 322, ch. 604, 6 3 Stat. 705 (transferring civil and criminal
jurisdiction over the Agua Caliente Reservation to California); Act of June 30, 1948, Pub. L. No. 846, ch. 759, 62
Stat. 1161 (giving jurisdiction over the Sac and Fox Reservation to Iowa); Act of May 31, 1946, Pub. L. No. 394, ch.
279, 60 Stat. 229 (assigning jurisdiction over offenses committed on the Devils Lake Reservation to North Dakota);
Act of Sept. 13, 1950, Pub. L. No. 785, ch. 947, § 1, 64 Stat. 845 (codified at 25 U.S.C. § 233 (1982)) (assigning
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criminal jurisdiction over all New York reservations to New York); Act of July 2, 1948, Pub. L. No. 881, ch. 809, 62
Stat. 1224 (codified at 25 U.S.C. § 232 (1982)) (assigning civil jurisdiction over all New York reservations to New
York); Act of June 8, 1940, Pub. L. No. 565, ch. 276, 54 Stat. 249 (codified at 18 U.S.C. § 3243) (granting
jurisdiction over all reservations in Kansas to that state).
[FN200] See, e.g., Act of Aug. 13, 1954, Pub. L. No. 547, ch. 732, 68 Stat. 718 (codified as amended at 25 U.S.C. §
§ 564, 564a-564w, 564w-1, 564w-2) (1982)) (terminating federal supervision of the Klamath tribe in Oregon); Act
of Sept. 5, 1962, Pub. L. No. 87-629, 76 Stat. 429 (codified at 25 U.S. § § 971- 980 (1982)) (terminating federal
supervision of the Ponca tribe of Nebraska); Act of June 17, 1954, Pub. L. No. 399, ch. 303, 68 Stat. 250 (codified at
25 U.S.C. § § 891-902 (1982)) (terminating federal supervision of the Menominee tribe in Wisconsin), repealed by
Act of Dec. 22, 1973 3(b), 87 Stat. 770.
[FN201] Act of Aug. 15, 1953, Pub. L. No. 280, ch. 505, 67 Stat. 58 8 (codified in part as amended at 18 U.S.C. §
1162 and 28 U.S.C. § 1360 (1982)) (transferring civil and criminal jurisdiction to California, Minnesota, Nebraska,
Oregon, and Wisconsin over actions committed or arising on most Indian reservations in those states).
[FN202] See, e.g., Act of Oct. 10, 1966, Pub. L. No. 89-635 § 1, 80 Stat. 880 (codified at 28 U.S.C. § 1362 (1982))
(permitting Indian tribes to maintain civil actions in federal district courts); Indian Civil Rights Act of 1968, Pub. L.
No. 90-284, Title IV 82 Stat. 78-80 (codified at 25 U.S.C. § § 1321-1326 (1982)) (providing in part for state
retrocession of Public Law 280 jurisdiction); Siletz Indian Tribe Restoration Act, Pub. L. No. 95- 195, 91 Stat. 1415
(1977) (codified at 25 U.S.C. § § 711, 711a-711f (1982)) (restoring the Siletz Indians as a federally recognized tribe
entitled to federal services and benefits); Menominee Restoration Act, Pub. L. No. 93-197, 87 Stat. 770 (1973)
(codified at 25 U.S.C. § § 903, 903a- 903f (1982)) (repealing termination of Menominee tribe of Wisconsin);
Alaska Native Claims Settlement Act of 1971, Pub. L. No. 92-203, 85 Stat. 688 (codified as amended at 43 U.S.C. §
§ 1601-1624, 1628-1629a (1982 & Supp. IV 1986)); Indian Self-Determination and Education Assistance Act of
1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified as amended in scattered sections of 25 U.S.C.).
[FN203] E.g., Indian Child Welfare Act of 1978, Pub. L. 95-608, 92 Stat. 3069 (codified at scattered sections of 25
U.S.C.); 25 U.S.C. § § 1321-26.
[FN204] See generally W. WILKINSON, INDIANS, TIME, AND THE LAW (1987); R. BARSH & J.
HENDERSON, THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY 137-202 (1980); Clinton, State
Power Over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D.L. REV. 434 (1981).
[FN205] E.g., Williams v. Lee, 358 U.S. 217, 222 (1959).
[FN206] E.g., California v. Cabazon Band of the Mission Indians, 48 0 U.S. 202, 208 (1987).
[FN207] E.g., White Mountain Apache v. Bracker, 448 U.S. 136, 137-3 8 (1980); Central Machinery v. Bracker,
448 U.S. 160, 166 (1980); Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 159
(1980); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 181 (1973).
[FN208] E.g., Blackfeet Tribe v. Montana, 471 U.S. 759, 768 (1985); McClanahan, 411 U.S. at 179; Moe v.
Confederated Salish & Kootenai Tribes, 425 U.S. 463, 483 (1976); Mescalero Apache Tribe v. Jones, 411 U.S. 145,
157-58 (1973)
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[FN209] E.g., Montana v. United States, 450 U.S. 544, 566 (1981); Ramah Navajo School Board, Inc. v. Board of
Revenue, 458 U.S. 832, 846-47 (1982); Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 691-92
(1965).
[FN210] E.g., Mescalero Apache Tribe, 411 U.S. at 158.
[FN211] E.g., Montana v. United States, 450 U.S. at 566.
[FN212] Rice v. Olson, 324 U.S. 786, 789 (1945).
[FN213] Williams, 358 U.S. at 223.
[FN214] See, e.g., Confederated Tribes of the Colville Reservation, 447 U.S. at 159; Moe, 425 U.S. at 483.
[FN215] Confederated Tribes of the Colville Reservation, 447 U.S. a t 159; Moe, 425 U.S. at 483; see also Puyallup
Tribe v. Department of Game, 433 U.S. 165, 173 (1977) (holding that the state court "had jurisdiction to decide
questions relating to the allocation between the hatchery fish and the natural run, the size of the catch the tribal
members may take in their nets, [[[and] their right to participate in hook-and-line fishing").
[FN216] See, e.g., Cabazon Band of Mission Indians, 480 U.S. at 222 (refusing to uphold application of state bingo
legislation on the ground that it would impermissibly infringe on tribal government); Ramah Navajo School Board,
458 U.S. at 832 (holding that New Mexico could not impose its state tax on the gross receipts received by a nonIndian construction company for completing a school for Indian children on a reservation); Central Machinery
Company, 448 U.S. at 165-66 (invalidating application of farm machinery sales tax to Indians because federal law
preempts state statutes in this field); White Mountain Apache Tribe, 448 U.S. at 137-38 (prohibiting imposition of
Arizona's motor carrier and fuel tax on Indians since this area preempted by federal law); Bryan v. Itasca County,
426 U.S. 373, 390 (1976) (invalidating state personal property tax as applied to Indians); McClanahan, 411 U.S. at
165 (holding that state tax cannot apply to reservation Indians with income derived wholly from reservation
sources).
[FN217] A few old nineteenth-century cases suggested some scope of inherent state authority over non-Indian
activity in Indian country even where the state activity did not impact on any Indian interest whatsoever. In United
States v. McBratney, 104 U.S. 621, 624 (1881), and Draper v. United States, 164 U.S. 240, 247 (1896), the Court
sustained state criminal prosecutions of non-Indians for crimes against the person or property of other non-Indians in
Indian country. Then, as now, however, federal rather than state courts would be used to prosecute non-Indians who
committed crimes against the person or property of an Indian in Indian country. See 18 U.S.C. § 1152 (1982). See
generally Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 ARIZ. L.
REV. 503, 520-52 (1976). Similarly, in Utah & Northern Ry. v. Fisher, 116 U.S. 28, 33 (1885), the Court sustained
a territorial tax on the lands and property of a railroad, a portion of which violated the right of way of the Fort Hall
Indian Reservation. Cf. Harkness v. Hyde, 98 U.S. 476, 478 (1878) (holding that sheriff acted unlawfully in serving
process to defendant on an Indian reservation); Langford v. Monteith, 102 U.S. 145 (1880) (maintaining that where
a question arises as to title of real property located within an Indian reservation, the Justice of the Peace for the
territory should certify the case to the appropriate district court). All of these cases, however, involved state or
territorial taxation or regulation of non-Indian activities that coincidentally occurred in Indian country with no
impact on Indians in any way. Where Indian interests were involved, the Court remained emphatic during this period
that states lacked any inherent authority to tax or regulate. See, e.g., The New York Indians, 72 U.S. (5 Wall.) 761,
771-72 (1866) (holding that taxes assessed upon three Indian reservations conflicted with tribal rights of the Seneca
Nation as guaranteed by treaties with the United States and are therefore illegal); The Kansas Indians, 72 U.S. (5
69 BULR 329
Page 41
Wall.) 737, 757, 759-61 (1866) (striking down state tax on lands held in severalty by individual Indians of the
Shawnee, Wea, and Miami tribes).
[FN218] 450 U.S. 544 (1981).
[FN219] Id. at 566.
[FN220] 425 U.S. 463 (1976).
[FN221] Id. at 483; see also, California State Bd. of Equalization
v. Chemehuevi Indian Tribe, 474 U.S. 9, 12
(1985) (holding that where non- Indian consumers purchase cigarettes from tribal smokeshops, the state has a right
to require the tribe to collect appropriate state cigarette tax from these non- Indians on the state's behalf);
Confederated Tribes of the Colville Reservation, 447 U.S. at 159 (upholding state's imposition of cigarette tax on
non-Indians who purchase cigarettes at tribal smokeshops).
[FN222] See, e.g., McClanhan, 441 U.S. at 165; Bryan, 426 U.S. at 375.
[FN223] Moe, 425 U.S. at 483.
[FN224] See, e.g., Confederated Tribes of the Colville Reservation, 447 U.S. at 159 (upholding requirements on
Indian smokeshop operators to record the number and dollar value of taxable sales to non-members of the Tribe and,
with respect to nontaxable sales, to record and retain the names of all Indian purchasers, their tribal affiliations, the
Indian reservations within which the sales were made, and the dollar amount and date of each sale).
[FN225] See Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and
Self-Government, 33 STAN. L. REV. 979, 983- 84 (1981) (discussing recent demands for abrogating Indian rights
and the importance of understanding the premises and justifications for protective federal Indian law in responding
to these demands).
[FN226] 1 G. SANTAYANA, THE LIFE OF REASON OR THE PHASES OF HUMAN PROGRESS 284 (1920).
Ironically, the unfortunate paternalistic sentences that immediately precede Santayana's famous aphorism are as
follows: "Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains
no being to improve and no direction is set for possible improvement: and when experience is not retained, as
among savages, infancy is perpetual." Id. (emphasis supplied).
[FN227] Wiley B. Rutledge Distinguished Professor of Law, Universit y of Iowa College of Law. A.B., 1968,
University of Michigan; J.D., 1971, University of Chicago. This Article is based on a paper delivered at the Edward
& Molly Scheu Native American Studies Symposium at Dartmouth College on May 13, 1988. The author
appreciates the helpful comments of Professors Randall Bezanson, Herbert Hovenkamp, Sheldon F. Kurtz, Michael
Green, and Nell Jessup Newton on earlier drafts of this Article. In addition, he gratefully acknowledges the diligent
assistance of research assistants Nancy Schneider, George Randels, Scott Morrison, and Charlotte Williams in
polishing this work. The ideas contained in this Article, however, are solely those of the author and should not be
attributed to these generous persons who kindly contributed their time and effort.
*382 APPENDIX
69 BULR 329
Page 42
PROCLAMATION OF 1763
WHEREAS We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America,
secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris, the 10th day of February last; and
being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail
themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their
Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council, to issue this
our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of
our Said Privy Council, granted our Letters Patent, under our Great seal of Great Britain, to erect, within the
Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled
and called by the names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows,
viz.
First--The Government of Quebec bounded on the Labrador Coast by the River St. John, and from thence by a Line
drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipissim; from whence
the said Line, crossing the River St. Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes
along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those
which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of St.
Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the
Island of Anticosti, terminates at the aforesaid River of St. John.
Secondly--The Government of East Florida, bounded to the Westward by the Gulph of Mexico and the
Appalachicola River; to the Northward, by a Line drawn from that part of the said River where the Catahouchee and
Flint Rivers meet, to the source of St. Mary's River, and by the course of the said River to the Atlantic Ocean; and to
the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six
Leagues of the Sea Coast.
Thirdly--The Government of West Florida, bounded to the Southward by the Gulph of Mexico, including all
Islands within Six Leagues of the Coast, from the River Apalachicola to Lake Pontchartrain; to the Westward by the
said Lake, the Lake Maurepas, and the River Mississippi; to the Northward, by a Line drawn due East from that part
of the River Mississippi which lies in 31 degrees North Latitude, to the River Apalachicola, or Catahouchee; and to
the Eastward by the said River.
Fourthly--The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and
the Islands of Dominico, St. Vincent's, and Tobago.
And to the end that the open and free Fishery of our Subjects may be *383 extended to and carried on upon the
Coast of Labrador, and the adjacent islands, We have though fit . . . to put all that Coast, from the River St. John's to
Hudson's Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon
the said Coast, under the care and Inspection of our Governor of Newfoundland.
We have also . . . thought fit to annex the Islands of St. John's and Cape Breton, or Isle Royale, with the lesser
Islands adjacent thereto, to our Government of Nova Scotia.
We have also . . . annexed to our Province of Georgia all the Lands lying between the Rivers Alatamaha and St.
Mary's.
And . . . We have . . . given express Power and Direction to our Governors of our Said Colonies respectively, that
so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and
Consent of the Members of our Council, summon and call General Assemblies within the said Governments
respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which
are under our immediate Government; and We have also given Power to the said Governors, with the consent of our
Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and
ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies,
and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such
69 BULR 329
Page 43
Regulations and Restrictions as are used in other Colonies; and in the mean Time, and until such Assemblies can be
called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection
for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power
under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of
our said Councils respectively, Courts of Judicature and public Justice within our Said Colonies for hearing and
determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to
the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such
Courts, in all Civil Cases, to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council.
....
And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the
several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be
molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to
or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.--We do therefore, with the
Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief
in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant
Warrants of Survey, or pass any Patents for *384 Lands beyond the Bounds of their respective Governments, as
described in their Commissions; as also that no Governor or Commander in Chief in any of our other Colonies or
Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of
Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic
Ocean from the West or North West, or upon any Lands whatever, which, not having been ceded to or purchased by
Us as aforesaid, are reserved to the said Indians, or any of them.
And, We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our
Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included
within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's
Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall
into the Sea from the West and North West as aforesaid;
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases
or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and
Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently
seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having
been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves
from such Settlements.
And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great
Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such
Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined
Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly
enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands
reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement;
but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be
Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for the
Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie; and in case
they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the
name of such proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give
for that Purpose; And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said
Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade
with the said Indians do take out a Licence for carrying on such Trade from the *385 Governor or Commander in
Chief of any of Our Colonies respectively where such Person shall reside, and also give Security to observe such
Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose,
to direct and appoint for the Benefit of the said Trade:
69 BULR 329
Page 44
And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies
respectively, as well those under Our immediate Government as those under the Government and Direction of
Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that
such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or
neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
And we do further expressly enjoin and require all Officers whatever, as well Military as those Employed in the
Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said
Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason,
Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to
send them under a proper guard to the Colony where the Crime was committed of which they stand accused, in order
to take their Trial for the same.
Given at our Court at St. James's the 7th day of October 1763, in the Third Year of our Reign.
END OF DOCUMENT

69 BULR 329 Page 1 (Cite as: 69 B.U. L. Rev. 329) Boston

Transcription

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