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The Indian conceived of the earth as mother, and as mother she provided
food for her children. The words in the various languages which refer to
the land as " mother " were used only in a sacred or religious sense. In
this primitive and religious sense land was not regarded as property; it
was like the air, it was something necessary tot he life of the race,
and therefore not to be appropriated by any individual or group of
individuals to the permanent exclusion of all others. Other words
referring to the earth as "soil" to be used and cultivated by man, mark
a change in the manner of living and the growth of the idea of a secular
relation to the earth. Instead of depending on the spontaneous products
of the land the Indian began to sow seeds and to care for the plants.
The order to do this he had to remain on the soil he cultivated. Thus
occupancy gradually established a claim or right to possess the tract
from which a tribe or an individual derived food.
This occupancy was the
only land tenure recognized by the Indian; he never of himself reached
the conception of land as interchangeable, this view having been forced
on his acceptance through his relations with the white race. Tecumseh
claimed that the Northwest Territory, occupied by allied tribes,
belonged to the tribes in common, hence a sale of land to the whites man
one tribe did not convey title unless confirmed by other tribes.
Furthermore, among most of the Algonquian tribes, at least, according to
Dr William .Jonas, if land were ceded to the whites, the cession could
not, be regarded as absolute, i. At., the whites could hold only to a
certain depth in the earth such as was needful for sustenance. Each
tribe had its village sites and contiguous hunting or fishing grounds;
as long as the people lived on these sites and regularly went to their
hurting grounds, they could claim them against all intruders. This claim
often had to be maintained by battling with tribes less favorably
situated. The struggle over the right to bunting grounds was the cause
of most Indian wars. In some tribes garden spots were" claimed by clans,
each family working on its own particular patch. in other tribes the
favorable localities were preempted by individuals regardless of clan
relations.
As long as a person planted a certain tract the claim was not
disputed, but if its cultivation were neglected anyone who chose might
take it. Among the Zuņi, according to Cushing, if a man, either before
or after marriage, takes up a field of unappropriated land, it belongs
strictly to him, but is spoken of as the property of his clan, or on his
death it may be cultivated by any member of that clan, though preferably
by near relatives, but not by his wife or children, who must be of
another clan.
Moreover, a man cultivating land at one Zuņi farming
settlement of the tribe can not give even of his own fields to a
tribesman belonging to another farming village unless that person should
be a member of his clan; nor can a plan living at one village take tip
land at another without the consent of the body politic of the latter
settlement; and no one, whatever his rank, can grant land to any member
of another tribe without consent of the Corn and certain other clans.
During the early settlement of the country absolute
title was vested in the Crown by virtue of discovery or conquest, vet
the English acknowledged the Indian's right of occupancy, as is shown by
the purchase of these rights both by Lord Baltimore in 1635 and by
William Penn in 1682, although colonizing under royal grants. The
Puritans, however, coiling ,without royal authority, were necessitated
to bargain with the Indians.
Absolute right to the Indian lands was
fully stated in a proclamation by George III in 1763. In 178:3 the
Colonial Congress forbade private purchase or acceptance of lands from
Indians. On the adoption of the Constitution the right of eminent domain
became vested in the United States, and Congress alone had the power to
extinguish the Indian's right of occupancy. The ordinance of 1787,
relative to all territory west of the Ohio, made the consent of the
Indians requisite to the cession of their lands. Until the passage of
the act of Mar. 3, 1871, all cession was by treaty, the United States
negotiating with the tribes as with foreign nations; since then
agreements have been less formal, and a recent decision of the U. S.
Supreme Court makes even the agreement or consent of the Indians
unnecessary.
The tribes living in Arizona, California, Nevada, New
Mexico, and Utah came under the provisions of the treaty of Guadalupe
Hidalgo, most of the Pueblos holding their lands under Spanish grants.
All Indian reservations have been established either by treaty or by
order of the President, but in both cases the Indian's tenure is that of
occupancy only. "They may not cut growing timber, open mines, quarry
stone, etc., to obtain lumber, coal, building material, etc., solely for
the purpose of sale or speculation. In short, what a tenant for life may
do upon the lands of a remainder-man the Indians may do upon their
reservations, but no more."
In a few cases reservations have been
patented to tribes, as those of the Five Civilized Tribes, and a limited
number of tribes have had their lands apportioned and received patents
for individual holdings, yet no general change in the Indian land tenure
took place until the passage of the severalty act in 1887. This act
provided for the allotment to each man, woman, and child of a certain
portion of the tribal land and the issuance of a patent by which the
United States holds the allotment in trust, free of taxation and
encumbrance, for 25 years, when the allottee is entitled to a patent in
fee simple. On the approval of their allotments by the Secretary of the
Interior the Indians become citizens of the United States and subject to
its laws. Seventy-three tribes already hold their lands under this
tenure. See Government Policy, Legal status, Reservations, Treaties,
Social organization.
Consult Adair, Hist. Am. Indians, 282, 1775; Bandelier
in Archtcol. Inst. Papers, in, 201, 272, 1890; Cushing in Millstone, ix,
55, 1884; Dawson, Queen Charlotte Islands, 117, 1878; Fletcher, Indian
Educationand Civilization, 1888; Grinnell in Am. Anthrop., ix, no. 1,
1907; Jenks in 19th Rep. B. A. E., 19Q0; Powell in 7th Rep. B. A. E.,
39-41, 1891; Royce, Indian Land Cession,-, 18th Rep. B. A. E., 1889; W
illoughby in Am. Anthrop., viii, no. 1, 1906.
Handbook of American Indians, Frederick W. Hodge,1906
http://www.accessgenealogy.com/native/tribes/history/landtenure.htm
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