69 BULR 329 Page 1 (Cite as: 69 B.U. L. Rev. 329) 329 THE ...robert-clinton.com/wordpress/wp-content/uploads/scholarship/69... · 329 THE PROCLAMATION OF 1763: COLONIAL PRELUDE

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

Boston University Law Review March, 1989

*329 THE PROCLAMATION OF 1763: COLONIAL PRELUDE TO TWO CENTURIES OF FEDERAL-

STATE 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

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69 BULR 329 Page 2(Cite as: 69 B.U. L. Rev. 329) 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 Euro-American 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


69 BULR 329 Page 3(Cite as: 69 B.U. L. Rev. 329) 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]


69 BULR 329 Page 4(Cite as: 69 B.U. L. Rev. 329) *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


69 BULR 329 Page 5(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 6(Cite as: 69 B.U. L. Rev. 329) 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]


69 BULR 329 Page 7(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 8(Cite as: 69 B.U. L. Rev. 329) 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.


69 BULR 329 Page 9(Cite as: 69 B.U. L. Rev. 329) 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]


69 BULR 329 Page 10(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 11(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 12(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 13(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 14(Cite as: 69 B.U. L. Rev. 329) 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]


69 BULR 329 Page 15(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 16(Cite as: 69 B.U. L. Rev. 329) 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 newly-independent 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


69 BULR 329 Page 17(Cite as: 69 B.U. L. Rev. 329) 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]


69 BULR 329 Page 18(Cite as: 69 B.U. L. Rev. 329) 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


69 BULR 329 Page 19(Cite as: 69 B.U. L. Rev. 329) 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 mid- nineteenth 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


69 BULR 329 Page 20(Cite as: 69 B.U. L. Rev. 329) 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 non-Indians [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 non-Indians--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.


69 BULR 329 Page 21(Cite as: 69 B.U. L. Rev. 329) *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 non-Indian 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, land- cession, 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.


69 BULR 329 Page 22(Cite as: 69 B.U. L. Rev. 329) [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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69 BULR 329 Page 23(Cite as: 69 B.U. L. Rev. 329) 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 ) (recognizing aboriginal title until land rights were abandoned or ceded to the government). [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





69 BULR 329 Page 24(Cite as: 69 B.U. L. Rev. 329) 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, 415-18, 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, 467-68, 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


69 BULR 329 Page 25(Cite as: 69 B.U. L. Rev. 329) 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.


69 BULR 329 Page 26(Cite as: 69 B.U. L. Rev. 329) [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").


69 BULR 329 Page 27(Cite as: 69 B.U. L. Rev. 329) [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.


69 BULR 329 Page 28(Cite as: 69 B.U. L. Rev. 329) [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.


69 BULR 329 Page 29(Cite as: 69 B.U. L. Rev. 329) [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. [FN76] See id. at 891. [FN77] Id. at 885-88. [FN78] See id. at 888. [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.


69 BULR 329 Page 30(Cite as: 69 B.U. L. Rev. 329) [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.


69 BULR 329 Page 31(Cite as: 69 B.U. L. Rev. 329) [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. [FN112] 7 N.Y. COL. DOCS., supra note 19, at 375-78. [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.


69 BULR 329 Page 32(Cite as: 69 B.U. L. Rev. 329) [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.








69 BULR 329 Page 33(Cite as: 69 B.U. L. Rev. 329) [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. [FN139] 7 N.Y. COL. DOCS., supra note 19, at 634-35. [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. [FN151] 8 N.Y. COL. DOCS., supra note 19, at 210-11. [FN152] Id. at 254.


69 BULR 329 Page 34(Cite as: 69 B.U. L. Rev. 329) [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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69 BULR 329 Page 35(Cite as: 69 B.U. L. Rev. 329) [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 , 455; Dick v. The Queen, [1985] 2 S.C.R. 309, 326. [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,






















69 BULR 329 Page 36(Cite as: 69 B.U. L. Rev. 329) 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




69 BULR 329 Page 37(Cite as: 69 B.U. L. Rev. 329) 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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69 BULR 329 Page 38(Cite as: 69 B.U. L. Rev. 329) [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. § § 461-479 (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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69 BULR 329 Page 39(Cite as: 69 B.U. L. Rev. 329) 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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69 BULR 329 Page 40(Cite as: 69 B.U. L. Rev. 329) [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 non-Indian 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(Cite as: 69 B.U. L. Rev. 329) 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















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(Cite as: 69 B.U. L. Rev. 329) 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:




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

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