As the purchase made by the Illinois and Wibashe land Companies, previous to the American Revolution, involves in it a very interesting question, relative to the Sovereignty of the Aborigines, or native Lords of the Indian territory comprehended within the bounds of the United States, and their rights of contract, or bona fide Sale of their lands; the lllinois and Wabash land Companies have considered it as a duty incumbent on them to publish a narrative and state of facts, founded on authentic documents, of their claim and rights to the lands purchased by them, and claimed, as they conceive, under an undefeasible title from the said Aboriginal proprietors and the Lords of the soil and lands in question.
In the year 1773, the month of June, the first purchase was made by William Murray, then a subject of the British government, and now of the United States, an Inhabitant of the Village of Kaskaskias, and the following is an abstract of his transactions, relating to both purchases.
"In the month of June, 1773, I held several public conferences with the several Tribes of the Illinois Nations of Indians, at Kaskaskias village; to all which conferences I invited to be
ivpresent, the British officers and all the inhabitants of the place, and a great number attended accordingly.
By the fifth of July following, I perfected an agreement to the entire satisfaction of the Indians, of whom I purchased two certain tracts of land, of which they were ever held to be true and absolute proprietors; and obtained from them a deed, duly, publicly and formally executed. The deed specified the considerations then delivered; and the several interpreters (of whom the King's interpreter was one) were duly sworn before the commanding officer of the Crown of Britain in their country, and certified under his hand.
In transacting this business, from the first conference to the final conclusion, near a month was employed to give them full time for deliberate consideration, and for the Chiefs to consult with their several Tribes: And farther to avoid any insidious suggestion of malignant persons, I prevented the Indians getting a drop of spirituous liquor during the whole of the negociation.
About eighteen months subsequent to this transaction, General Cage ordered the same commanding officer to convene the Indian Chiefs afresh, after I purchased the lands, and to inform them; "That notwithstanding the sale they had made, and the considerations they had received, they might hold those lands, and that they were still their property."
After some deliberation, the Chiefs replied, That, they thought, what the great Captain said was not right; that they had sold the lands to me and my friends not for a short time, but, as long as the Sun rose and set: —
vThat I had paid them what they had agreed for, and to their satisfaction, and more than they had asked for; and that they wished how soon I and my friends should come and settle upon the lands; that they would help to protect us against our enemies, and hoped we would do the same for them, &c." — This was related to me by the officers present.
In September, 1775, I commenced another negociation of a similar nature with the several Chiefs of the different Tribes of the Piankashaw nations of Indians at Post St. Vincent and Ouiachtenon, and (with the same caution, deliberation and form observed as in the first land purchase) obtained a deed duly executed for several tracts of land upon both sides of the Ouabache River.
Previous to my having commenced to negociate either purchase, I had the Records examined (which were pretty regularly kept from the time the French nation had any garrisons in the Illinois country) with a view of finding what lands were ceded by, or purchased from the native Indians, either for garrisons, &c. or for the use of the inhabitants who from time to time settled in that country, and by what original titles the inhabitants held the lands they possessed, some of whom had very large tracts.
I not only consulted the oldest of the Indian Chiefs, but also the most intelligent of the earliest French inhabitants of the country. The result of which inquiries was, that the lands held for the use of garrisons, or held by the inhabitants, originated from cesssions on grants obtained for a valuable consideration from the native Indians of that country, and from the same Indians I made the purchases of lands in the two deeds specified.
viThat those Indians owed no
The lately broached doctrine of the six nations having any right of conquest or superiority over those Indians, I believe to be entirely groundless, from all the information I could ever yet obtain. — Colonel Creghan
The British ministry after the Treaty of Paris in 1763, when they first acquired a sovereignty in this country, directed the Indian superintendents to negociate a lasting and general peace between the six nations and their allies on the one part, and the Southern Indians and their allies of the other part; after some time spent in negociating, a formal Treaty of Amity was perfected by the mediation of Sir William Johnson, and Mr. John Stuart.
Several years subsequent to this, the Chickasaw Indians carried on an unremitted course of hostilities against the Illinois Indians, without any mark of resentment on the part of the six nations.
The Sacs and Rennards also, without giving offence to those six nations, carried on war against the same Illinois Indians, and with the same impunity on the part of the six nations. Because the Chickasaws and Sacs and Rennards were allies or friends of those six nations, and the Illinois were independent of, and unallied and unconnected with either.
Captain Hutchins and Colonel George Morgan can verify these facts. I have seen at different times; and so late as spring, 1775 — the Sacs and Rennards, engaged in hostilities against the several Tribes of the Illinois Indians; and while I was at Kaskaskias, many fell on both sides.
Having now stated the circumstances, the authenticity and the notoriety and fairness of the purchase, the company now proceed to subjoin copies of their deeds, and abstracts of their proceedings under the same, viz. first. The two deeds as follow.
In pursuance of these deeds, the company proceeded to organize themselves, as subjects of the British government, and afterwards as citizens of the United States, acceding to Law, and their best judgment, governing themselves in all their transactions by devout principles of attachment to their country, and submission to the constituted authorities of the same, during the whole period of the Revolution.
After sundry meetings, between the dates of their deeds from the Indians, of July fifth, 1773, and October eighteenth, 1775, as herein after inserted, the Companies, at a general meeting held at Philadelphia, November 3d, 1778, resolved to organize themselves, by a regular Instrument of Writing, for the effectual management of their affairs, which being drafted by a
viiicommittee appointed for that purpose, was ratified April 29th, 1780, at a large meeting of the Company, and soon afterwards subscribed by all the members or shareholders, remaining citizens of the United States, posterior to the Declaration of Independence. A plan of settlement of the country was agreed upon April 29th, 1780; and numbers of settlers as well as some considerable purchasers, were ready to contract with the Companies, and a large settlement could then have been promoted, and possession taken of the lands with the consent of the natives; but on further discussion of the business, at some future meetings of the members, on principles of true attachment to their country and zeal for the cause of America, then depending on the war, they determined to suspend all measures respecting settlement, until the establishment of peace, and to commit their claim to the consideration of Congress; for which purpose, at a meeting February first, 1781, a memorial was agreed upon, and soon afterward presented, setting forth the title of the Company to the lands purchased of the natives; at the same time acknowledging the jurisdiction and sovereignty of the United States, and declaring that the Company are ready to submit to, and perform every duty, which can be required of good citizens, in the management and improvement of their property according to the laws of the land.
This memorial concluded with an overture to the following effect; "That the country within the bounds of the grants from the Indians was amply sufficient for the establishment and settlement of a new State; that the company, acknowledging (as they ought) the sovereignty of the United States, offered to cede to them on equitable and liberal terms, a considerable
vivproportion of the said territory, by which a complete title to the same (under the native Lords of the soil) will be vested in the United States, which may be made use of by Congress, for the most important purposes:"
The result of this and a subsequent memorial to Congress will be noticed in the conclusion of this publication, after the TITLE DEEDS from the Indians, and the account of the proceedings of the Company.
The Illinois and Ouabache Land Companies, April 29, 1780.
The Articles of Union, and Constitution for the Government, &c. of the Illinois and Ouabache Land Companies — dated April 29, 1780.
WHEREAS in and by a certain Deed Poll bearing date the 5th day of July, in the year of our Lord one thousand seven hundred and seventy-three, under the hands and seals of divers Chiefs and Sachems of the Tribes of and effectually representing the different Tribes of the Illinois Indians, duly executed; They the said Chiefs and Sachems for the considerations in the same Deed mentioned did grant, sell, alien, release, infcoff and confirm unto William Murray and others in the same Deed named (and who are since called and known by the name of the Illinois Company) and to their heirs and assigns, two several tracts, pieces or parcels of land, situated on the East side of the River Mississippi, in the country of the Illinois, and bounded and described as in the same Deed is particularly set forth with the hereditaments and appurtenances thereunto respectively belonging, and which same
xlands are since called and known by the name of the Illinois purchase or purchases: And whereas by a certain other Deed Poll dated the eighteenth day of October, 1775, duly executed under the hands and seals of divers Chiefs and Sachems, fully representing the several Tribes of the Piankashaw Indians, they the said Chiefs and Sachems for the considerations therein mentioned, did grant, bargain, sell, alien, release and confirm unto Louis Viviat, and others in the said Deed particularly named, (and who are since called and known by the name of the Ouabache Company) and to their heirs and assigns, two several tracts pieces or parcels of Sand bounded and described as the same arc in and by the said Deed particularly mentioned and set forth, and lying on both sides of the Ouabache River; together with the hereditaments and appurtenances to the said several tracts of land respectively belonging (and which said tracts are since called and known by the name of the Ouabache purchases:) And whereas at a meeting of the grantees in the said above in part recited grants, by themselves or their Attornies, held at Philadelphia, on the thirteenth day of March, 1779, and distinguishing themselves by the name of the Illinois and Ouabache Companies, it was proposed that though the said two Companies should be united on the terms in the minutes of the said Company then and theretofore made and particularly expressed; and the same two companies were then and there resolved and declared accordingly to be and continue from thenceforth "United, and that the lands should be in common between them." And whereas it is most expedient and for the better and easier management of the said Companies interest in the said lands, that a certain
xiConstitution or Articles of agreement should be formed and drawn up to be for the future governance and direction of and obligatory upon all and singular the members of the said united Companies, their heirs, successors and assigns respectively.
Now therefore it is hereby resolved, articled, covenanted and consented to by the said united Companies,
First, — That the said Companies or grantees shall from henceforth be called and known by the name of the "United Illinois and Ouabache land Companies."
Second, — That the said united Companies shall have four stated meetings every year, viz. on the last Mondays of the months of March, June, September and December, and that till some other place be appointed by the Companies, the said quarterly meetings shall be held in the city of Philadelphia: provided nevertheless that on business of emergency, the President and Council herein after named, may call a special meeting at such time and place as they shall judge most convenient, and of all such meetings, whether stated or special, at least thirty days notice shall be given by the Secretary in one or more of the newspapers published in the States of Pennsylvania and Maryland, where the said grantees or their attorneys principally reside.
Third, — That the members of the said Company at all meetings, stated or special, may appear and vote either in person, or by proxy, or attorney duly constituted as is herein after mentioned.
Fourth, — That as the said lands, by an agreement of the Companies dated 20th of August 1779, are to be divided into eighty-four shares, part of which yet remains to be appropriated, the owners of a majority of appropriated shares appearing as aforesaid by themselves or attorneys,
xiishall constitute a quorum to do business, and that the Rules and Laws made at any of the said four stated meetings, and also the Ordinances made at any special meeting for the execution of the said rules and laws, shall be obligatory upon and duly observed by all and every of the grantees and members of the said united Companies.
Fifth, — That each whole share in the said Company's land shall be entitled to four votes upon any question, and that no representation less than that of one quarter of such share shall be entitled to a vote.
Sixth, — That the letters of procuration or attorney of such members as shall appoint proxies or attorneys to vote for them, shall be certified by a Magistrate or Notary Public, and registered in the Company's books by the Secretary.
Seventh, — That the said united Companies when duly convened at their stated meetings as aforesaid, shall have power to elect and appoint such Officers with fit titles for such time, and with such powers and salaries as to them shall seem expedient.
Eighth, — That they shall also have full power to appoint a President and a Council of four members who shall together be the owners of five full shares; which said President and Council shall exercise such powers as the said Company shall from time to time vest in them.
Ninths, — No future conveyance of a share, or part of a share of the lands of the said Company shall be deemed valid, unless it be attested before a Magistrate or Notary Public, and until such conveyance be recorded in the Company's books.
Tenth, — All shares of the said Company's lands shall be deemed and taken as securities, to oblige the due and full observance of the resolutions and regulations made or to be made by the said Company,
xiiiand to defray their proportion of such necessary expences as have or may accrue; and that unless payment of such expence be made by the owners thereof within the times to be limited by the said Company, the said shares or such parts there of as may be necessary, shall be liable to sale in the manner the Company may hereafter direct.
Eleventh, — That as by the agreement of the said companies entered on their minutes, of August 20th, and November 8th, 1779; Thirty of the said eighty-four shares were to be disposed of for the benefit of the forty-two original grantees of the said Illinois and Ouabache Companies, their heirs and assigns, and ten more shares or eighty-four parts were reserved also by the said original grantees to be disposed of, or given in such manner as they might judge most for their interest (exclusive of two shares which by the said agreement is conceded to the Ouabache Company upon uniting their interest with the Illinois Company;) wherefore it is hereby agreed and finally resolved, that such of the said shares as remain yet undisposed of or unappropriated, shall, (when disposed of or appropriated,) be a bar against all claim of any of the members: and the Monies arising from such sales shall be for the sole and exclusive benefit of the said forty-two original grantees, their heirs and assigns according to the bargains of sale or agreement which may be made for that purpose, in pursuance of the resolutions of the said Companies entered in their said minutes of August 20th, and November 8th, last past.
Twelfth, — That all and singular the resolutions and regulations (not hereby altered) entered into and made by the said Companies before or since their union relative to their said lands,
xivshall be and are hereby ratified, established and confirmed, and the same shall have full operation according to their true intent and meaning, until the same may be altered or annulled by the said Company.
That a copy of the several minutes of the proceedings of the different meetings which are referred to in the foregoing instrument, together with the plan of settlement approved at a meeting on the eighth day of November last, be made out for the perusal of the members at the time of signing.
The shares belonging to Mr. Morris and Mr. Holker being purchased by them before the explanatory resolution of the eighth day of November last, respecting the uses to which the monies arising from the sale of shares by the Companies are to be applied.
Resolved, That the monies arising from the sale of the said two shares, be appropriated to the use of the united Illinois and Ouabache land Companies, and not solely to the use of the forty-two original proprietors; but that for the future, the monies arising from the sale of shares by the united Companies, shall be for the sole use and benefit of the forty-two original proprietors.
Resolved, That out of the monies arising from the sale of the two shares to Mess. Morris and Holker, the President pay four thousand pounds to Mr. Murray, to be accounted for by him towards defraying the necessary expences of the Companies.
Indian Deed. No. I.
To all people to whom these Presents shall come Greeting. know ye that we Tomaroa or Gabriel, Pataguage or Michael, Maughquayah or John Baptiste Couroway, Kicounaisa, or Fish, and Tontowaraganih or Peter, sometimes called Lacloche or the Bell, Kaskaskias Chiefs, Maughquinthepe or Bears Head otherwise called the Black Dog, Meinquipaumiah Achiswewah and Eshawinikiwah Pervariahs and Cahoquias Chiefs, Chiefs and Sachems of the different tribes of the Illinois Nations of Indians, and being and effectually representing all the tribes of the said Illinois Indians send Greeting.
WHEREAS William Murray of the Illinois country, merchant, one of the grantees herein-after named, as well for himself as on the parts and behalfs of the several other grantees herein also afternamed, did at several conferences publicly held with us the said Chiefs and Sachems at Kaskaskias Village, in the Illinois country aforesaid, treat and confer with us the said Chiefs and Sachems for the purchase of certain quantities or tracts of lands belonging and appertaining unto us
4and to the several tribes or nations of Indians whom we represent. And whereas we the said Chiefs and Sachems have deliberately and maturely considered for ourselves, and consulted with the natives of our several tribes or nations, of the request and proposals made as aforesaid by the said William Murray, for himself and others, to us the said Chiefs and Sachems. And whereas we the said Chiefs and Sachems as well as the other natives of our several tribes or nations are fully satisfied and contented (for the consideration hereinafter mentioned) to grant and confirm unto the said William Murray, and to the other grantees hereinafter named, the several tracts or quantities of land hereinafter bounded and described. Now know ye therefore, That we the said Chiefs and Sachems of the several tribes of the Illinois Indians aforesaid, in full and public council assembled, at Kaskaskias Village aforesaid, for and in consideration of the sum of five shillings to us in hand paid by the said William Murray, and for and in consideration of the following goods and merchandize to us the said Tomaroa, Pataguage, Maughquaqah Couroway, Kicounaisa, Tontowaraganih, Maughquinthepe, Achiswewah Meinquipaumiaha and Eschawinikiwah paid and delivered in full council aforesaid, That is to say, two hundred and sixty strouds, two hundred and fifty blankets, three hundred and fifty shirts, one hundred and fifty pairs of stroud and half thick stockings, one hundred and fifty stroud breech cloaths, five hundred pounds of gunpowder, four thousand pounds of lead, one groce of knives, thirty pounds of vermillion, two thousand gunflints, two hundred pounds of brass kettles, two hundred pounds of tobacco, three dozen gilt looking-glasses, one groce gun-worms, two groce
5awls, one groce of fire-steels, sixteen dozen of gartering, ten thousand pounds of flour, five hundred bushels of Indian corn, twelve horses, twelve horned cattle, twenty bushels of salt, and twenty guns, the receipt whereof we de hereby acknowledge, have pointed, bargained, sold, aliened, released, enfeoffed, ratified, and fully confirmed, and by these presents do grant, bargain, sell, alien, release, enfeoff, ratify, and fully confirm unto the said William Murray, Moses Franks and Jacob Franks, of the city of London, in the kingdom of Great Britain, Esquires; David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, and James Milligan, all of the city of Philadelphia, in the province of Pennsylvania, merchants; Mosca Franks of the same city, attorney at law; Andrew Hamilton and Willliam Hamilton of the same city, gentlemen; Edmund Milne of the same city, goldsmith and jeweller; Joseph Simons, and Levi Andrew Levi of the town of Lancaster, in the county of Lancaster, and province aforesaid, merchants; Thomas Minshall of York County, and province aforesaid, Esquire; Robert Callender and William Thompson of Cumberland County, and province aforesaid, Esquires; John Campbell of Pittsburgh, Westmoreland County, and province aforesaid, merchant; George Castles of the Illinois Country aforesaid, and James Rumsey, late of the same Country, merchants, their heirs and assigns, in severalty. or unto his most sacred majesty, George the Third, by the Grace of God, of Great Britain France and Ireland King, Defender of the Faith, and so forth, his heirs and successors, for the use, benefit, and behoof of all the said several abovenamed grantees, their heirs and assigns, in severalty as aforesaid (by
6whichever of these tenures the said grantees may most legally hold the same) the two several tracts or parcels of land hereinafter described and bounded, viz.
One tract or parcel of land stuate, lying and being on the east side of the river Mississippi, beginning at the mouth of the Heron Creek, called by the French the river of Mary, being about a league below the mouth of the Kaskuskias river, thence a northward of east course, in a direct line back to the Hilly Plains, eight leagues or thereabouts be the same more or less; thence the same course, in a direct line to the Crab Tree Plains, seventeen leagues or thereabouts, be the same more or less; thence the same course in a direct line to a remarkable place known by the name of the Big Buffaloe Hoofs, seventeen leagues or thereabouts, be the same more or less; thence the same course, in a direct line to the Salt Lick Creek, about seven leagues, be the same more or less; then crossing the said creek, about one league below the ancient Shawanese town, in an easterly or a little to the north of east course, in a direct line to the river Ohio, about four leagues, be the same more or less, then down the Ohio by the several courses thereof, until it empties itself in the Mississippi, about thirty-five leagues, be the same more or less; and then up the Mississippi, by the several courses thereof, to the place of beginning, thirty-three leagues or thereabouts, be the same more or less. And also one other piece or parcel of land, situate, lying, or being on the east side of the Mississippi: Beginning at a place or point in a direct line opposite to the mouth of the Missouri river; thence up the Mississippi by the several courses thereof, to the mouth of the Illinois river, about six leagues, be the same more or
7less; then up the Illinois river, by the several courses thereof, to Chicagou or Garlick Creek, about ninety leagues or thereabouts, be the same more or less; then nearly a northerly course, in a direct line to a certain place, remarkable, being the ground on which an engagement or battle was fought about forty or fifty years ago, between the Pewaria and Renard Indians, about fifty leagues, be the same more or less; thence by the same course in a direct line to two remarkable hills close together in the middle of a large prairre or plain, about fourteen leagues, be the same more or less; thence a north of east course, in a direct line to a remarkable spring known by the Indians by the name of Foggy Spring, about fourteen leagues, be the same more or less; thence the same course, in a direct line to a great mountain to the northward of the White Buffaloe plain, about fifteen leagues, be the same more or less; thence nearly a south west course in a direct line to the place of beginning, about forty leagues, be the same more or less. And also all minerals, ores, trees, woods, underwoods, waters, water-courses, profits, commodities, advantages, rights, liberties, privileges, hereditaments, and appurtenances whatsoever, to the said two several tracts or parcels of land belonging, or in any wise appertaining, and also the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof. And all the estate, right, title, interest, use, property, possession, claim, and demand, of them the said Tomaroa, Petaguage, Maughquayah, Couroway, Kicoanaisa, Tontowaraganih, Maughquinthepe, Achiswewah, Meinquipaumiah and Eschawinikiwah, chiefs and sachems aforesaid, and of all and every other person and persons whatsoever, of, or belonging to, the said nations, of, into,
8and out of, the premises, and every part and parcel thereof, to HAVE and to HOLD the said several tracts or parcels of land, and all and singular the said granted or bargained premises, with the appurtenances, unto them the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Moses Franks, Andrew Hamilton, William Hamilton, Edmond Milne, Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Rumsey, their heirs and assigns forever, in severalty, or unto his said Majesty, his heirs and successors, to and for the use, benefit, and behoof, of the said grantees, their heirs and assigns for ever, in severalty as aforesaid. And the said Tomaroa, Petaguage, Maughquayah, Couroway, Kicounaisa, Tontowaraganih, Maugquinthepe, Achiswewah, Meinquipaumiab, and Eschawinikiwah, for themselves and for their several tribes of the Illinois nations, and all and every other nation and nations, tributaries and dependants on the said Illinois Indians, and their and every of their posterities the said several tracts of land, and premises, and every part thereof against them the said Tomaroa, Petaguage, Maughquayah, Couroway, Kicounaisa, Tontowaraganih, Maugquinthope, Achiswewah, Meinquipaumiab, and Eschawinikiwah, and against the said Illinois nations, and their tributaries and dependants, and all and every of their posterities, unto the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Miiligan, Moses Franks, Andrew Hamilton, William Hamilton, Edmond Milne, Joseph Simon, Levi Andrew Levi,
9Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Rumsey, their heirs and assigns, in severalty, or unto his said Majesty, his heirs and successors, to and for the only use, benefit, and behoof, of the said grantees, their heirs and assigns in severally as aforesaid, shall and will warrant and for ever defend, by these presents. in witness whereof, We, the said chiefs and sachems in behalf of ourselves respectively, and in behalf of all the different tribes of the Illinois Indians as aforesaid, have hereunto set our hands and seals in the presence of the persons subscribing as witnesses hereunto, at a public council held at Kaskaskias village aforesaid, this fifth day of July, in the thirteenth year of his Majesty's reign, and in the year of our Lord one thousand seven hundred and seventy-three.
Tomaroa, or Gabriel, a chief of L.S. the Kaskaskias.
his mark, the cross.
Petaguage, or Michael, a chief of L.S. the Kaskaskias.
his mark, the cross.
Maughquayah, or John Baptist, a chief of L.S. the Kaskaskias.
his mark, the cross.
Couroway, a chief of L. S. the Kaskaskias.
Kicounaisa, or Fish, a chief of L.S. the Kaskaskias.
his mark, the cross.
Maugquinthepe, or black dog, a chief of L. S. the Pewariahs.
a bear's head.
Achiswewah, a chief of L.S. the Pewariahs.
a bear's head.
Eschawinikiwah, a chief of L.S. the Pewariahs.
a hand and target.
Meinquipaumiah, a chief of L.S. the Cahoquias.
a leg and thigh.
IN the presence of us. — The word [Thousand] in the twenty eighth line of the first page, being first wrote upon an erasure. The word [course] in the fifteenth line, and the word [Murray] in the twenty eighth line of the second page being first interlined. And also [Meinquipaumiah] the last subscribing chief of the Cahoquias his name was first interlined in two places in the first page, and the same Chief's name was also interlined in three, places in the second page of these presents, before signing.
SEALED AND DELIVERED in the Presence of us. All the foregoing interlineations, erasure and writing on an erasure being first made, the considerations in the above written
11Deed Poll, being also delivered in our presence to the said chiefs, the said deed translated or explained by Richard Winston in French to Michael Dannee an inhabitant of the said village of Kaskaskias, and to Piero Bloit, Indian interpreter for the crown, who explained and interpreted the same to the said Indian chiefs in council: The said Michael Dannee, and Piero Bloit, interpreters, cannot write their names.
Viviert, Captaine de Militee,
Rich. Winston, French Interpreter,
Kaskaskias, Illinois Country, ss.
PERSONALLY appeared before me, Richard Winston and Michael Dannee, of the country aforesaid, inhabitants, and Piero Bioit, Indian interpreter for his majesty at this place, who being solemnly sworn upon the holy Evangelists, do depose and say as follows, viz. The said Richard Winston deposeth and sayeth that he acted as French interpreter, during the negotiation of the purchase of the lands in the foregoing deed poll bounded and described, that he, the said Richard Winston, did, to the best of his knowledge and understanding, faithfully interpret and explain in the French language, to the said Michael Dannee and Piero Bloit, the purport or tenor of the aforesaid deed poll, the considerations therein expressed, the boundaries of the lands thereby bargained and sold to the grantees therein named, and was a subscribing witness to the executing the same deed, as well as present at the delivery of the consideration in the said deed mentioned.
The said Michael Dannee and Piero Bloit depose and say, that they both acted as Indian interpreters in the said transaction, that they to the best of their knowledge and understanding, did faithfully interpret and explain to the several chiefs whose marks are affixed to the foregoing deed or grant, the purport of the same as it was interpreted or explained to the deponents in the French language, by the said Richard Winston, that the said Michael Dannee and Piero Bloit were present at the executing the aforesaid deed or grant.
But that they cannot write their names.
Hugh Lord, Capt. 18th Regt. Com. Illinois Country,
Fort Gage, 20th July, 1773.
En Registre au Livre v, en mon Etude aux Kaskaskias. Page 21, 22, 23, 24, 25, 26, 27, 28, & 29. Deuxieme Septembre, 1773.
Indian Deed. No. II.
TO ALL PEOPLE to whom these Presents shall come. know ye that we Tabuc or Tobacco, Mantour La Grand Couett, Ouaouajao Tabac junior, La Mouche noire or the Black Fly, Le Maringouin or Musquitto, Le Pettit Caster or Little Beaver, Kiesquibichias, Grelot senior and Grelot junior, Chiefs and Sachems of the several tribes of the Piankashaw nation of Indians, and being and effectually representing all the several tribes of the Piankashaw Indians, send Greeting. WHEREAS Louis Viviat of the Illinois Country, merchant, one of the grantees hereinafter named, as well for himself as on the parts and behalfs of the several other grantees herein also afternamed, did at several conferences publicly held with us the said Chiefs, and Sachems at the towns and villages Post Saint Vincent and Vermillion, treat and confer for the purchase of certain tracts of land belonging and appertaining unto us and to the several tribes of our nation whom we represent. AND whereas we the said Chiefs and Sachems have deliberately and maturely considered for ourselves and our posterities, and consulted with the other natives of our
14several tribes respecting the proposals made as aforesaid to us the said Chiefs and Sachems, by the said Louis Viviat on behalf of himself and others. and whereas we the said Chiefs and Sachems, as well as all the other natives of the several tribes of our nation are fully satisfied and contented for the consideration hereinafter mentioned, to grant and confirm unto the said Louis Viviat and to the other grantees hereinafter mentioned, the several quantities or tracts of land hereinafter bounded and described. NOW know ye therefore that we the said Chiefs and Sachems of the Piankashaw nation aforesaid, in full and public council assembled, at the town or village of Post Saint Vincent aforesaid, for and in consideration of the sum of five shillings to us in hand paid by the said Louis Viviat, and for and in consideration of the following goods and merchandize to us the said Tabac or Tobacco, Montour, La Grand Couett, Ouaouaijao, Tabac Junior, La Mouche Noire or the Black Fly, Le Maringouin or Musquitto, Le Pettit Castor or Little Beaver, Kiesquibichias Grelot Senior, and Grelot Junior, for the use of the several tribes of our nations, well and truly delivered in full council aforesaid, That is to say, Four hundred blankets, twenty two pieces of stroud, two hundred and fifty shirts, twelve groce of star gartering, one hundred and twenty pieces of ribbon, twenty four pounds of vermillion, eighteen pairs velvet laced housings, one piece of malton, fifty two fusees, thirty five dozen large buckhorn handle knives, forty dozen cutteaux knives, five hundred pounds of brass kettles, ten thousand gun-flints, six hundred pounds of gunpowder, two thousand pounds of lead, four hundred pounds of Tobacco, forty bushels of salt, three thousand pounds of flour three horses. also the following quantities of
15silverware, viz. Eleven very large armbands, forty wristbands, six whole moons, six half-moons, nine earwheels, forty-six large crosses, twenty-nine hairpipes, sixty pairs of earbobs, twenty dozen small crosses, twenty dozen nose-crosses, and one hundred and ten dozen broaches, the receipt whereof we do hereby acknowledge have granted, bargained, sold, aliened, released, enfeoffed, ratified, and fully confirmed, and by these presents do grant, bargain, sell, alien, release, enfeoff, ratify and fully confirm unto the said Louis Viviat, the right honourable John carl of Dunmore, governor of the colony and dominion of Virginia, the honourable John Murray, son of the said carl, Moses Franks and Jacob Franks of the city of London, in the kingdom of Great Britain, Esquires, Thomas Johnson, junior, Esquire., attorney at law, and John Davidson, merchant, both of the city of Annapolis, in the province of Maryland, William Russell, Esquire, Matthew Ridley, Robert Christie, senior, and Robert Christie, junior, of Baltimore Town, in the said province of Maryland, merchants, Peter Campbell, of Piscataway, in Maryland, merchant, William Geddes, of Newtown Chester, in Maryland, Esquire, collector of his majesty's customs, David Franks, merchant, and Moses Franks, attorney at law, both of the city of Philadelphia, in the province of Pennsylvania, William Murray, and Daniel Murray of the Illinois Country, merchants, Nicholas St. Martin and Joseph Page, of the same place, gentlemen, Francis Perthuis, late of Quebec city, in Canada, but now of Post St. Vincent, aforesaid, gentlemen, their heirs and assigns, equally to be divided, or to his most sacred majesty George the Third, by the grace of God, of Great Britain, France and Ireland King, Defender of the Faith, and so forth,
16his heirs and successors, for the use benefit and behoof of all the said several abovenamed grantees, their heirs and assigns, in severalty, as aforesaid (by whichever of these tenures they may most legally hold the same.) The two several tracts or parcels of land hereinafter bounded and described, viz. One tract or parcel of land situate lying and being on both sides the Quabache River, beginning at the mouth of a rivulet called Riviere du Chate or Cat River where it empties itself into the Ouabache River aforesaid, being about fifty-two leagues distant from and above Post St. Vincent aforesaid, thence down the Ouabache, by the several courses thereof to a place called Point Coupee (about twelve leagues above Post St. Vincent) being forty leagues or thereabouts in length on the said River Ouabache from the place of beginning, with forty leagues in width or breadth on the east side, and thirty leagues in breadth or width on the west side of the Ouabache River aforesaid, to be continued along from the place of beginning to Point Coupee aforesaid. and also one other tract or parcel of land situated lying and being on both sides of the Ouabache River aforesaid, beginning from the mouth of White River where it empties itself into the Ouabache River, (about twelve leagues below Post St. Vincent) thence down the Ouabache River by the several courses thereof until it empties itself into the Ohio River, being from said White River to the Ohio, fifty three leagues in length or thereabouts, be the same more or less, with forty leagues in width or breadth on the east side, and thirty leagues in width or breadth on the west side of the Ouabache River aforesaid, to be continued along from White River aforesaid to the Ohio River aforesaid [The intermediate space of
17twenty-four leagues or thereabouts, between Point Coupee and the mouth of the White River aforesaid, being reserved for the use of the inhabitants of Post St. Vincent aforesaid, with the same width or breadth on both sides of the Ouabache River as is hereby granted in the two other several tracts of land above bounded and described] The aforesaid two several tracts of land hereby bargained and sold, from the first place of beginning, to the Ohio River, consisting together of ninety three leagues in length on the Ouabache River, and on both sides there of inclusive, seventy leagues in width or breadth, and that during its whole course as aforementioned, exclusive of and besides the reservation of twenty tour leagues in length and seventy leagues in width or breadth for the inhabitants of Post St. Vincent reserved as aforesaid. and the said Chiefs and Sachems for themselves and for the several other natives of their nation whom they fully and effectually represent, and their and every of their posterities Do hereby guarantee, engage, promise, covenant and agree to and with the several above-named grantees, their heirs and aligns, and every of them, that they the said several above-named grantees, their heirs and assigns, and every of them, shall and may at all times forever hereafter, have and enjoy the full, free, and undisturbed navigation of the said Ouabache River, from its confluence with the Ohio, to its source; as well as of all the other several rivers running through the lands hereby bargained and sold, anything herein contained to the contrary, or supposed to be in anywise, notwithstanding. an d also all minerals, ores, trees, woods, underwoods, waters, water-courses, profits, commodities, advantages, rights, liberties, privileges, hereditaments, and appurtenances whatsoever to
18the said two several tracts of land belonging or in anywise appertaining. and also the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof. and all the estate, right, title, interest, use, property, possession claim and demand of them the said Tabac or Tobacco, &c. Chiefs and Sachems aforesaid, and of all and every other person and persons whatsoever of or belonging to the said Piankashaw nation of Indians of into and out of the premises and every part and parcel thereof TO have and TO hold the said two several tracts or parcels of land, and all and singular the said granted and bargained premises with the appurtenances, unto the said Louis Viviat, &c. their heirs and assigns forever in severalty, or unto his said majesty his heirs and successors, to and for the only use, benefit, and behoof of the said grantees, their heirs and assigns forever as aforesaid.
And the said Tabac or Tobacco, &c. for themselves, and for all the several tribes of their nation, and all and every other nation or nations, tributaries and dependants on the said Piankashaw Indians, and their and every of their posterities, the said several tracts of land and premises and every part and parcel thereof, against them the said several abovenamed chiefs and Sachems, and the said Piankashaw Indians, and their tributaries and dependants, and all and every of their posterities, unto all the severally abovenamed grantees, their heirs and assigns in severalty, or unto his said Majesty, his heirs and successors, to and for the only use, benefit, and behoof, of the said grantees, their heirs and assigns, in severalty as aforesaid, shall and will warrant, and forever defend, by these presents. in witness whereof, we the said chiefs and Sachems, on
19behalf of ourselves respectively, and on behalf of all the other natives of the several tribes of the Piankashaw nation of Indians as aforesaid, have hereunto set our hands and seals, in the presence of the persons subscribing as witnesses hereunto, at a public council held at Post St. Vincent aforesaid, this eighteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five.
Tabac, or Tobacco, a chief, (Seal)
Montour, a chief, (Seal)
La Grand Couette, a chief, (Seal)
Ouaouaijao, a chief, (Seal)
Tabac Junior, a chief, (Seal)
La Mouche Noire, a chief, (Seal)
Maringoin, or Musquitto a chief, (Seal)
Le Petit Castor, or Little Beaver, a chief, (Seal)
Kiesquibichias, a chief, (Seal)
Grelot Senior, a chief, (Seal)
Grelot Junior, a chief, (Seal)
Le fil du Cotenier, chief.
SEALED AND DELIVERED in the presence of us, the consideration in the said Deed Poll specified, being also delivered in our presence to the said chiefs.
Registered in my office at Kaskaskias village in the Limois country, in book v, pages 55, 56, 57, 58, 59, 60, 61, 62, 63, 64. Witness my hand this fifth day of December, Anno Domini 1775.
Post St. Vincent, ss.
BEFORE me St. Marie, commandant of Post St. Vincent aforesaid, personally appeared Panas Godert, and Vaudery, inhabitants of the same place, who being duly sworn, do depose and say, that they acted as Indian interpreters during the several conferences held at the towns Post St. Vincent and Vermillion, by Louis Viviat on behalf of himself and others, with the chiefs and sachems of the several tribes of the Piankashaw Indians, relative to the purchase of the lands in the within written Deed Poll bounded and described, That the deponents did truly and faithfully interpret between the said Louis Viviat and the chiefs and sachems aforesaid, in all the negociation, That they the said deponents did to the best of their knowledge and understanding, faithfully and truly interpret and explain to the said chiefs and sachems whose marks are affixed to the within written Deed Poll, the purport or tenor of the same, the considerations therein expressed, the boundaries of the lands thereby bargained and sold to the grantees therein named — And were also present at the delivery of the several considerations in the said deed specified, as well as at the executing the deed by the several chiefs and sachems who have affixed their marks thereto. Witness my hand and seal this nineteenth day of October, in the year of our
21Lord one thousand seven hundred and seventy-five.
GILLIENT Ste. MARY, (Seal)
Notaire. SENE CODERE,
Marque de I.B. VAUDERY, Interprete.
State of Facts by the Illinois and Oubache Land Companies.
Humbly submitted to the Honourable Committees of the Senate and House of Representatives of the United States , on behalf of the Illinois and Wabash Land Company.
1. The company claims by purchase fairly made, and with full notoriety, from different Indian tribes, aborigines and lawful possessors of the country, who being free and independent, having never alienated their property, or become tributaries to any other power, had an absolute right to convey the same, as the memorialists had to purchase.
2. The consideration specified was, bona fide, paid in open council at a public treaty, exceeding, perhaps, in value, the consideration paid for any similar purchase on any former occasion, either by states or individuals.
3. The validity of the purchase, the execution of the deeds, the receipt of the consideration, (besides many presents during the treaties, which can neither be enumerated nor duly valued) have been acknowledged, and never denied, by the
22said tribes and nations, nor hath any other nation or tribe, ever since or before, set up or pretended any right or claim to the lands contracted for.
4. The said lands are sufficiently described by lines and natural boundaries, as hath been usual in all Indian contracts and purchases; and although some doubts have been entertained concerning the accuracy of the courses of some of the lines mentioned in one of the parcels of land, beginning on the north side of the Illinois river; yet there are so many terminations of those lines, by well known marks and stations, that on very equitable construction, the deed will be found to close itself, and to comprehend a well described tract of country.
If the facts above stated can be supported to the satisfaction of the Honourable Committee of the Senate and House of Representatives of the United States — if it shall appear that the Illinois or Kaskaskias tribes of Indians, of the one part, and also the Wabash or Piankashaw tribes on the other, were absolute proprietors of the lands severally sold by them — that they were, and still remain, free and independent nations, members of the Western Confederacy, never conquered, nor held as tributaries to any power upon earth, having never surrendered their property, nor sold the right of pre-emption thereof to any other people or nation — if it shall likewise appear, that no prohibition of Indian purchases, before the late Revolution, extended or could extend, beyond the territories of the six nations and their tributaries, (the pre-emption right of which only was vested in the crown of Great Britain,) and lastly, in addition to this, if it can be shewn that the Six Nations never pretended conquest over the tribes aforesaid, but confined their claims far on this side of the Wabash and Illinois country — then
23it is hoped a doubt cannot remain of the validity of the Company's title; and that a transfer of the same to the United States may be rendered effectual, to preclude the necessity of a second purchase, and to bar, all future claims of the Indians to the lands in question; except so far as they may expect the usual presents, upon their recognizing the title at any future treaty with the general government.
But although in this view of the case, the company might remain satisfied to leave the determination of their rights to the United States, either in Congress assembled, or in their own Courts of Law; yet as the general system of policy may be averse to the vesting or confirming such extensive grants to companies or individuals; and several state governments or communities, from this consideration, and a view to expediency and public good, have ceded to the general government large proportions of their claims and territories for protection in the rest; the company have authorized and instructed us, as their committee, to propose and negociate a like surrender cession of their right and title to the lands aforesaid, by a conveyance of the same to the United States, upon receiving such compensation, in part of the lands, as may appear consistent with their justice and liberality; taking into the account the consideration paid to the native lords of the soil, and the value of the shares purchased from the first grantees by individuals having a full confidence in the validity of the title; all which amounts to at least fifty-thousand pounds, as can be made appear by the committee of the Company, who are also ready to support the facts above stated, as the foundation of their claim, in such manner, and at such time, as the Honorable
24committees of the Senate and House of Representatives of the United States, may be pleased to direct. — All which is humbly submitted.
In support of the facts stated by the Illinois and Wabash Land Companies, by their committee, they beg leave to subjoin the following arguments and documents.
I. Concerning the absolute Independence of the Illinois and Wabash Indians commonly known by the name of Kaskaskias and Piankashaws; and that they were never tributaries to the Six Nations, nor claimed as such.
The Aboriginal Indians of North America were generally considered as divided into three great and independent tribes or confederacies.
1. The Abanaquies or more northern tribes, bordering on Canada, New England, &c.
2. The Iroquois or Six Nations of which the Mohawk were chief, bordering on New York, Pennsylvania, and part of Virginia.
3. The Western Confederacy, bordering on part of Virginia, North and South Carolina, consisting of various tribes, such as the Miamis, Kickapoos, Piankashaws, Kaskaskias or Illinois in general, Catawbas, and other Indians in alliance with the French.
The Iroquois or Six Nations are those with whose claims we are more immediately concerned, as having conveyed the pre-emption right of their lands to the crown of Great Britain and put themselves under its protection in a treaty held at Albany in the year 1679, their deed of conveyance being made to Governor Dungan of N. York in trust for the crown. This appears from the records of Albany, and especially at a treaty held in the court-house of that city four years afterwards, viz. Sept. 26, 1683; when the agents of
26William Penn; namely Mr. William Haig, and Mr. James Graham appeared to claim a confirmation of that part of his grant which lay on the waters of Susquehannah and fell within their territory, as belonging to the Cayaugas and Onandoges. They spoke as follows.
"We were together yesterday, and did hear the great Penn speak by his agents concerning the land lying on Susquehannah River. I have slept but little this night, having been continually musing. I have no orders from Corlaer; I think the land cannot be sold without his order; for we have delivered it up to this government four years ago, and shall do nothing in the sale without the governor-general's order, or those that represent him. The land belongs to the Cayugas and Onandagoes. The other three nations, the Senecas, Oneidas, and Maguese (or Mohawks) have nothing to do with it.
Signed with these marks of Cayuga and Onandago, chiefs.
WILLIAM PENN, therefore, had no remedy, but to acquire the confirmation of his pre-emption right from the Indians, under his charter from the crown, by deeds of lease and release from governor Dungan, which were executed at London the 12th and 13th days of January, 1696, for the consideration of one hundred pounds sterling.
Upon this ancient treaty with the Six Nations is founded the preemption right of territorial property, exercised by the crown of Great Britain, in the settlement of the middle states of America. An empire founded upon conquest, or the visionary donations of papal power, unsupported by previous contracts with the aboriginal lords and occupiers of the soil, was never set up by Great Britain, and the United States have set up no farther territorial rights than they have derived by their independency and succession to the rights of Great Britain in America.
With respect to every other nation or tribe, who were not the avowed tributaries of the Six Nations, and who had not before the revolution, by public treaties and solemn contracts, alienated their property or the pre-emption right of the same to Great Britain or individuals capable of making a purchase, or who have not since the Revolution alienated to the United States or individuals; they remain to this day absolute and independent proprietors of the soil.
Were it necessary to adduce arguments or authorities in proof of this doctrine to the enlightened and magnanimous policy of the United States, the following official opinion of two Lord Chancellors of England, Pratt and York, dated August 1, 1772, would be sufficient.
"In respect to such places as have been or shall be acquired by treaty or grant from any of the Indian Princes or Governments, your majesty's letters patent are not necessary to the property of the soil vesting in the Grantee, by the Indian Grants, subject only to your majesty's right of sovereignty over the settlements as English settlements, and over the inhabitants as English subjects, who carry with them your majesty's Laws wherever they form colonies, and
28receive your majesty's protection by virtue of your royal charters."
It remains then only to shew — That Illinois and Wabash are among the number of those free and independent nations who had a right to alienate their property by treaty or grant, and that they did, with sufficient public notoriety, alienate a part of the same for a full and valuable consideration to the Illinois and Wabash Companies; being at the time of the alienation in full and free possession of the same; and having never alienated to any other.
Although it might be sufficient in the ordinary course of justice to put the onus probandi upon those who assert that those nations were tributaries (it being difficult to prove a negative) yet the Illinois and Wabash Companies conceive they have it in their power, and think it their duty, with all humility, to offer a full proof of a negative of this question.
The Kaskaskias or Illinois Indians on the Illinois waters, the Piankashaws, Kickapoos, and Ouachtenons, on the Wabash Waters, the Miamis on the Miamis Waters of Lake Erie, and many other adjoining tribes, were of the North Western Confederacy, connected with the French of Canada; and by investigating the whole series of Indian transactions and treaties, from the first settlement of America to the period of the Revolution, as well as the treaties between Great Britain and France, it will not be found that they were never named as tributaries of the Six Nations, or present with them, as connected in any public treaty. It was not till in the year 1763, at the treaty of Paris, that France finally relinquished all claim to the territories of those nations by fixing irrevocably "That the confines between the British and French territories on the
29continent of America should be by a line along the middle of the Mississippi, from its source to the river Iberville, and through its middle, and Lakes Maurepas and Pontchartrain, to the sea."
If, then, previous to this treaty, the nations in question had not ceded their territorial rights to the French, nor since that treaty have ceded them either to the British or to the United States, they could neither at the time of their sale to the Companies, nor can at this time, be under any legal prohibition in the sale of their lands to subjects of the United States. For at the time of the sale the British government had not acquired by treaty, nor pretended by conquest, any pre-emption right to their territory; and the purchase being made before the declaration of independence, and under the view and sanction of the British commanding officer, there could be no prohibition of the United States that could reach that case.
But it has been said, that although the lands were not directly within the claim of the Six Nations, "yet the same lands are claimed by some of their tributaries, in opposition to the Indians who conveyed the same."
It might be sufficient, in answer to this, to ask what tributaries of the Six Nations have ever claimed those lands? Certain it is, that in every treaty proposed, or that may be now depending between the Illinois and Wabash Indians, and the United States, or any of the neighbouring tribes, they are considered as free and independent tribes having a right to hold or to alienate their property, so far as they are not bound by prior contracts with states or individuals.
But a direct proof may be given that the Six Nations have bounded their own claims, and the
30claims of their tributaries, by the Ohio and Cherokee rivers, far to the eastward and southward of the Illinois and Wabash lands.
In the year 1684, Mons. De la Barre, in a speech to the Five Nations, complains "that they had abused the children of his king," enumerating as such the nations of the Western Confederacy, and particularly the Illinois, Kickapoos, Twightwees, Miamies, &c.
In a memorial or report of a committee of the Council of New York, on the Indian trade, which is signed, among others, by Mr. Colden and Mr. Alexander, dated Nov. 6th, 1724, the country of the Five nations is described as follows, viz.
1. The Mohawks live but forty miles directly west of Albany.
2. The Oneidas likewise lie west of Albany about one hundred miles, near the head of the Mohawks river.
3. The Onandagoes lie about one hundred and thirty miles west of Albany; and the Tuscaroras live partly with the Oneidas, and partly with the Onandagoes.
4. The Cayugas are about one hundred and sixty miles from Albany.
5. And the Senekas, the furthest of all these nations, are not above two hundred and forty miles from Albany.
Having thus ascertained the bounds of the Five Nations, they proceed to consider all the southwestern Indians, living on the Ohio and Mississippi, as independent and free, connected only with the French in Canada, by means of trade; and they mention it as a new thing that the Twightees, called by French Miamies, living on a branch of the Mississippi, and some other Indians, whose names they had never heard of before, had, for the first time, come to trade with them in the
31preceding year, at Albany — that the art and industry of the French had so far prevailed on all the other Indians of America, that they were everywhere directed by French counsels; that even their own Five Nations had of late been so far gained by the French, that several of them had gone to settle near Montreal, in Canada; that the peace of the colonies might be endangered by the many nations which lie to the westward of New York, Pennsylvania, and Maryland, and assert their own freedom; that it would be of the utmost consequence to the British interest, if, by means of trade, they could be drawn from their dependence upon the French, and united with their own Indians of the Five Nations; so that at this time the Five Nations had made no conquests, and had no allies or tributaries to the westward of Pennsylvania and Maryland; but the tribes living there "asserted their own freedom."
We proceed forward then, to a remarkable period, viz. at the treaty of Lancaster, in the year 1744; when the Five (then become Six) Nations were called upon to declare the extent of their conquests and the number of their tributaries, by the governments of Virginia, Maryland, and Pennsylvania, who denied that they had any right of territory or conquest beyond the mountains.
The commissioners on the part of Maryland first addressed them, as follows:
"When the Governor of Maryland received the first notice, about seven years age of your claim to some lands in that province, he thought our good friends and brethren of the Six Nations had little reason to complain, and that on farther deliberation he should hear no more of it. — Our great King of England and his subjects have always possessed the province of Maryland free and undisturbed from any claim
32of the Six Nations, for above one hundred years past, and your not saying anything to us before, convinces us you thought you had no pretence to any lands in Maryland; nor can we yet find out to what lands, or under what title, you make your claim. For the Susquehannah Indians, by treaty, above ninety years ago, yielded to the English nation the greatest part (if not all) of the lands we possess, from Patuxent river, on the western, as well as Choptank river, on the eastern side of Chesapeake. "But although we are not satisfied of the justice of your claims to any lands in Maryland, yet we are desirous of shewing you brotherly kindness." &c.
In answer to this, the Six Nations say, that on examining the deeds made to Maryland by the Sasquehannah Indians, they acknowledge them to be good and valid, and that the Conestogoe or Susquehannah Indians had a right to sell those lands (on the east and west side of Chesapeake Bay) for they were theirs — But since that we conquered them, and the lands we demand satisfaction for, are no part of the lands in those deeds but the Cohongorontas or Potomack lands which you have not possessed above ten years. To this the commissioners of Maryland reply:
"That although they could not admit the right of the Six Nations to the Potomack lands, yet being resolved to live in brotherly love with them, they would give them three hundred pounds currency for a release in writing of all their claims to lands in Maryland."
The commissioners of Virginia next addressed the Six Nations, as follows.
"In the year 1736, you wrote to us, "That you exacted some consideration for lands, in the occupation of some of the people of virginia.
33On looking into the old treaties, we find you had given up your lands to the great King, who has possession of Virginia, above a hundred years ago. Tell us what nations of Indians you conquered any lands from in Virginia, how long it is since, and what possession you have had." — For they would not allow, that the over-running a country, without being able to keep possession, gave any right of conquest.
The Six Nations reply — "We have a right of conquest, which cost us too much blood, to give up without any reason at all, as you say we have done at Albany. All the world knows we conquered the several nations, living on Susquehannah, and Cohongoroimas, or Potomack, on the back of the great mountains. We allow, that you drove back the Tuscaroras, and on that account, have a right to some part of Virginia; but we conquered beyond the mountains, and if Virginia got a good right, it must be by us. We must tell you what mountains we mean that are the boundaries, and over which some of your people have settled." They then describe the ground between the Potomack and the Old Warrior Path, along what in Pennsylvania is called the Warrior Ridge, passing by the Berkley Springs; and so far as concerns Maryland, "From the uppermost Fork of Potomack, near where Thomas Cressap has a hunting-ground, by a north-line to the bounds of Pennsylvania. — With respect to Virginia — That great river Potomack, and the high ridge of mountains, which extends along the frontiers of Virginia, to the westward of the then present settlements of Virginia."
But to close this dispute with the Six Nations, the Virginians, after the example of Maryland, agree to give the Six Nations 2001 in gold, and
342001. in goods, for a quit claim of all the lands in Virginia, to the southward and westward of the lands of Maryland and Pennsylvania, "Although they do not allow their right to those lands, but that the southern Indians claim the same."
In short the claim of the Six Nations by right of conquest, appears by this treaty of 1744, to be entirely bounded by the lands of the Susquehannah and Potomack Indians, and never extended to the Illinois and Wabash country. They never have at any treaty, intimated a claim in those parts. The exact claims of those nations, in their utmost extent, are ascertained by Colonel George Croghan upon oath, who was for near thirty years deputy superintendent of their affairs, and better acquainted with their country, and the history of all their wars, than any other man living. — The affidavit was made at the close of his life, and he had no interest to swerve from the truth.
"GEORGE CROGHAN, Esq. being duly sworn, on the Holy Evangelists of Almighty God, doth depose and say, That the Six Nations claim, by right of conquest, all the lands on the South East side of the river Ohio, down to the Cherokee river, and the West side of the Ohio, down to the Big Miamis river? (otherwise called Stony River); and that the Six Nations never had a claim of any kind, or made any claim, to lands below the Big Miamis, or Stony River on the West side of the Ohio; but that the lands on the West side of the Ohio, below Stony River, were always supposed to belong to the Indians of the Western Confederary. — That (Colonel Croghan) the deponent, has for thirty years been intimately acquainted with the above country, and the Indians, and their different claims to territory, and never heard the Six Nations claim, and knows they never did claim
35beyond the above description, nor did they ever dispute the claim of the Western Confederacy.
And further saith not.
Sworn to the 20th day October, 1781, before me,
The final cession of the Six Nations, at the treaty of Fort Stanwix, on Tuesday, November 1st, 1768, with the speeches and circumstances attending it, are a full proof of the extent of their claims, and the truth of Col. Croghan's deposition.
Disclaiming all former bounds, or territorial jurisdiction, under what colour or pretences whatsoever, they describe their final cession to the King of England, in the following clear and explicit words; as by their deed, dated the 5th day of November following, may appear —
"We Begin on the Ohio, at the mouth of the Cherokee river, which is our just right, and from thence we go up on the South side of the Ohio to Kittanning, above Fort Pitt, from thence in a direct line to the nearest Fork of Susquehannah" — Thence proceeding by various natural boundaries and courses "to the mouth of Canada creek, where it empties itself into Wood creek, at the end of the long Carrying Place, beyond Fort Stanwix. — And this we declare to be our final resolves, &c."
It would be superfluous to mention, to the Honorable Committee of Congress, who are so intimately acquainted with the public transactions, between Great Britain and France, concerning territory in America, that previous to the treaty of Paris in 1763, it was the interest and policy
36of Great Britain, to extend the claims of the Six Nations, as far North Eastward as possible; and it was the interest and policy of France, to limit and shorten their claims.
In the memorials and negotiations between the two crowns, in the year 1755, it was contended by France, "That according to the treaty of Utrecht, the king of England had no pretentions to the country on the Ohio," nor to any lands Westward of the Allegheny mountains; and by England, "That France had no exclusive right to the Lakes Ontario, Erie, and the river Niagra, but that the subjects of both nations, as well as the Iroqueis, had made use of the navigations of those waters, without distinction, as often as their occasions and conveniences required:" And it was acknowledged, on both sides, "that there were intermediate nations between Canada and Louisiana, and between Virginia and Louisiana, who were independent of the sovereignty of both crowns, and to be considered as a barrier between them."
By the treaty of Paris, as hath been mentioned before, all those intermediate nations, on this side of the Mississippi, became annexed to the sovereignty of Great Britain, so far as they could be annexed, by the bargain of foreign powers, without their own consent, or being made parties to the contract. But still they remained the same independent people as before; and had an absolute indefeasible right to hold, or to alienate their property at their pleasure. Mere nominal dominion, or the futile cession of one King to another, could convey no territorial property of Indian nations, aborigines, and possessors of the soil, and who had before been acknowledged both by France and England, to be "Independent of the Sovereignty of each of them, and to be considered
37as a barrier between them." The King of England never claimed the right of soil in their territory, but immediately after the cession of 1763, by his Proclamation dated October 7th, declared, "That although they lived under his protection, their territory was their own," having never been ceded to, nor purchased by him,"
This has been the constant language of the Crown of England. Mere sovereignty, without purchase from the native Indians was never considered, as conveying a Title, or any Right of Soil. The charters granted to the former colonies did not pretend to vest or convey any right of this kind; but were founded on purchases previously made, or directed to be made, from the natives, by companies, or individuals, as English subjects.
In the Massachusetts, every foot of land was purchased from the Norridgowock, Penobscot and other Indians; nor did they ever consider themselves as having any title to their lands, till such purchase was fairly made. Virginia, Maryland, New York, and Pennsylvania, purchased in like manner from the Iroquois and their dependants. The charters of Connecticut and Rhode Island are founded on purchases before made from the natives, in which not only the contracts and purchases of Companies and Towns, but even of Individuals are recognized and sanctioned by the Crown.
And in the famous case of Major Mason's purchase from the Moncagan Indians of the 15th of August, 1659 (which was litigated for near 70 years, and at last determined in England before the highest Appellate Judicature for the Colonies, the greatest law characters, such as York, DeGrey, Dunning, Jackson, Wedderburn, &c. being
38concerned) it was agreed in every stage of the transaction and decided, after repeated trials, that the royal grant subsequent to Mason's purchase from the natives could give no legal title to the lands in dispute, and although a title might have been unquestionably derived, under the Charter of Connecticut, and subsequent patents from the Colony, yet that title was deserted by the council on both sides, and the title to the lands established upon the foundation of the Indian Deeds, and the conveyance made by major Mason to the Colony, although the Deeds from the Indians appeared to be attended with many exceptionable circumstances, and the payment of the consideration to the natives, at such "distance of time and place, could not be fully proved."
The application of this case, and the various arguments above stated, concerning the Illinois and Wabash purchases, it is humbly conceived, need not be insisted upon. It was declared by the crown of Great Britain that the right of the natives remained entire before the Revolution; they having never ceded nor sold the same; and the payment of the purchase or consideration can be fully proved, and was at least equal in value to what hath at any time been paid for any similar purchase made in America either by states or individuals; their being, at the same time, no law or prohibition which could either then, or now, restrain a citizen of America from entering into a contract with any foreign powers or subjects; provided he retains his allegiance to the state to which he belongs, and to the United States.
The value of the consideration is the last thing to be mentioned, on a comparison with other Indian purchases.
39The Illinois purchase, including the expences of the treaty, and interest on the value of the goods, &c.:
The Wabash purchase, including as above,:
The cash paid by many of the present holders for their shares at 4001. Ster. for a share, will exceed the purchase money to the natives; so that when the Company stated their expenditures on this purchase at fifty thousand pounds, they were far within bounds,
The consideration paid by the crown of England for the great country ceded at Fort Stanwix, but ten thousand four hundred and sixty pound seven shillings and three pence sterling.
The consideration paid by the proprietors of Pennsylvania for the residue of their province, on the same occasion, was but ten-thousand dollars.
The consideration paid by Maryland at Lancaster for the final release of the Potomack lands, was only three, hundred pound currency.
The consideration paid by Virginia on the same occasion, for the extensive territory beyond the mountains, was but four-hundred pound currency.
So large a consideration having been paid to the Illinois and Wabash Indians, in the comparison
40with the other Indian purchases, and the receipt of the said consideration, on a fair bargain with full deliberation and notoriety, having never been denied, but has been confessed and acknowledged by the Indians on several public occasions since the purchase, it is hoped that the honorable committee will be satisfied, that a valid title may be derived to the United States, under the Deeds, to the Companies, without any second purchase from the natives, and clear of every claim of the Six Nations and their tributaries.
To the Honourable the Senate and House of Representatives of the United States.
The Memorial and Petition of the Illinois and Onabache United Land Companies, humbly sheweth,
"That during the years 1773 and 1775, your memorialists purchased from different Indian tribes, aborigines and possessors of the country lying on part of the waters of the rivers Illinois and Onabache, two parcels of land, as described in the deeds now in their possession, and which, when required, are ready to be produced.
"That the consideration, as specified in the aforementioned deeds, was at least as valuable as any that was given on similar occasions; that the negociation was of the most public notoriety
41that the meaning and intention of the parties were interpreted and explained by persons duly qualified, of whom his Britannic Majesty's interpreter was one — all deposing that they were present, either at the delivery of the bargained property to the Indians, or at the execution of the deeds, as will be found authenticated by Hugh Lord, Esq. Captain in the 18th British regiment, and then commanding in that territory. The registry of Kaskaskias will also shew the record of the whole transaction. That further formalities, if from the British government more were necessary to be obtained, were prevented by the almost immediate rupture with Great Britain; that the property of the lands in question was, at the time of purchase, in the natives; that however clear the claim of the Company to the whole of their purchase may be, they hesitate not to express their willingness and desire that a reasonable compromise upon the subject may take place between the United States and them.
"They therefore pray, that your Honourable House may appoint a committee to hear and report upon the justice of their case, and such proposals as they shall lay before it. This prayer, they with confidence hope, will be complied with, both from your known love of justice, and the evident advantage that must result to the community; if, by a compromise with the Company, the necessity of a second purchase from the natives would be precluded. Of this little doubt can be entertained, since the Indians never have denied, and are still ready, as the Company are credibly informed, to acknowledge the honesty of the purchase made from them by your memorialist.
Report of the Committee of the Senate.
Report of the Committee of the Senate, viz. Messrs. Strong, Sherman, Ellsworth, Izard, Burr, upon the foregoing memorial.
The Committee of the Senate, to whom was referred the Memorial of the Illinois and Wabash Land Companies, report,
THAT the claims of the petitioners are founded on two deeds mentioned in the said petition; one of which to William Murray and others, who are called the Illinois Company, is dated July 5th, 1773: and the other to Lord Dunmore and others, who are stiled the Wabash Company, bears date October 18th, 1775.
That the said petitioners have proposed to surrender and convey to the United States, all the lands described, or meant to be described in the above-mentioned deeds from the Indians, on the proviso, that the United States reconvey to the Company one-fourth part of the said lands.
That, in the opinion of the Committee, deeds obtained by private persons from the Indians, without any antecedent authority or subsequent confirmation from the government, could not vest in the grantees mentioned in such deeds, a title to the lands werein described.
That the petitioners do not suggest any such antecedent authority or subsequent confirmation in the present case, and, Therefore, in the opinion of the Committee, the said petitioners have not a legal title to the said lands.
That the proceeds of the sales of lands in the Western Territory belonging to the United States, are appropriated towards discharging the debts, for the payment whereof the United States are holding.
43The petitioners alledge, that the considerations specified in the said deeds were paid to the Indians and were, at least, as valuable as any that were given on similar occasions, and that the Indians, named in the said deeds, were owners of the land. On these points, the Committee give no opinion: but, for the reasons above expressed, it would not be expedient for the government of the United States to accede to the aforementioned proposition of the petitioners.
Report of the Committee of the House of Representatives.
Report of the Committee of the House of Representatives, viz. Messrs. Livermore, Fitzsimons, and Clerk.
The Committee to whom was referred the Memorial of the Illinois and Wabash Land Companies, report, THAT the claims of the petitioners are founded on two deeds mentioned in the said petition; one of which to William Murray and others, who are called the Illinois Company, is dated July 5th, 1773: and the other to Lord Dunmore and others, who are stiled the Wabash Company, bears date October 18th, 1775.
That the said petitioners have proposed to surrender and convey to the United States, all the lands described, or meant to be described in the above-mentioned deeds from the Indians, on the proviso, that the United States reconvey to the Company one-fourth part of the said lands.
And that, in the opinion of the Committee, the said deeds having been given by the Indians,
44proprietors of the soil, before the declaration of the independence of the United States, for a valuable consideration bona fide paid, are sufficient to extinguish the Indian title to the lands therein described.
And therefore, that on principle of justice and equity, the United States should agree to the proposal aforesaid made by the petitioners.
All which is humbly submitted,
Chairman of Committee.
Memorial of the Illinois and Wabash Land Company.
ILLINOIS AND WABASH
Senate and House of Representatives of the United States of America, in Congress assembled.
The Memorial of the Illinois and Wabash Land Company,
THAT your memorialists with all deference, as becometh good and faithful citizens, have heretofore presented sundry memorials and petitions to Congress, setting forth their claim and title to certain lands, lawfully and bona fide purchased, as they conceive, from the native lords and absolute proprietors of the soil, under the sanction of the British government, prior to the revolution, and declaration of American independence.
That our first memorial and petition was taken up in the year 1731, by the committee to whom the cessions of New York, Virginia, Connecticut, and the petitions of the Indiana, Vandalla, and the said Illinois and Wabash land companies were referred, and a report thereupon made to Congress: But it does not appear that the said report was any further acted upon, under the old confederation, than so far as related to the land cessions of the said three states of New York, Virginia, and Connecticut; the claims of the private companies being postponed, or left undetermined.
That the Illinois and Wabash company continued to prosecute their claim, by subsequent memorials and petitions to Congress, until the
47formation and adoption of the present happy constitution of the United States; and then afterwards took an early opportunity to renew their memorials and petitions to the Senate and House of Representatives, recapitulating their former memorials and petitions, and stating anew —
1. That their purchase was made with full notoriety, from Indian tribes, aborigines, and lawful possessors of the soil, who being free and independent, and having never alienated their property, nor the pre-emption thereof, had, at the time of the purchase by your memorialists, an absolute and indefeasible right to sell and convey the same to any persons or companies whomsoever; and they did sell and convey, accordingly, to your memorialists, no law or prerogative of any power on earth prohibiting, or having a right to prohibit them, by treaty or conquest, or otherwise, in their transactions or doings.
2. That the said purchase was made antecendent to the American revolution, in open council, at a public treaty, held under the sanction and authority of the crown of Great Britain, and when it was well understood that such purchase was lawful from any of the native lords of the soil, (the Six Nations only excepted, who had sold the right of their territory to the crown of Great Britain.)
In support of this doctrine, your memorialists submitted to the committees of both Houses of Congress, the following law documents, as set forth more at large in the printed state of their case, which accompaines this memorial, viz.
The great crown lawyers of England, Pratt, Yorke, and Dunning, two of whom were afterwards lords chancellors of the realm, gave their opinion to the crown, as followeth, viz.
"That with respect to such places as have
48been, or shall be acquired by treaty or grant from any of the Indian princes or governments, even the king's letters patent or confirmation, was not necessary; the property of the soil vesting in the grantees by the Indian grants, subject only to his majesty's right of sovereignty over the settlements as English settlements, and over the inhabitants as English subjects."
In the famous case of major Mason's purchase, of the Moheagan Indians, on the 15th of August, 1659, (which was litigated for near seventy years, and at last determined in England, before the highest appellate judicature, for the colonies); the greatest law characters, (some of whom have been mentioned before) such as Yo-ke, De Grey, Dunning, Jackson, Wedderburne, &c. being concerned, it was agreed in every stage of the transaction, and decided, after repeated hearings, "That the royal grant, subsequent to Mason's purchase from the natives, could give no legal title to the lands in dispute, and although a title might have been unquestionably derived under the charter of Connecticut, and subsequent patents from the colony, yet that title was deserted by the council on both sides, and the title to the land, established upon the foundation of the Indian deeds, and the conveyance made by major Mason, to the colony, (although the deeds from the Indians appeared to be attended with many exceptionable circumstances) and the payment of the consideration to the natives, at such distance of time and place, could not be fully proved."
That the purchase made by your memorialists was not only notorious, and of recent date, has been stated above, and the consideration specified in the deeds, was bona fide paid by the company, in open council, at the said public treaty,
49the receipt thereof publicly acknowledged in the body of the deeds then publicly executed, and the deeds themselves acknowledged and recorded, in the proper places of record in the country, according to law in the government then existing.
That the consideration paid (besides many valuable presents made during the treaty) exceed in value what had ever before been paid for any similar purchase by states or individuals, and the receipt of the same, as well as the validity of the purchase, never denied; but on all subsequent public occasions constantly acknowledged by the said tribes and nations, and their descendants, to the present day. Nor have any other nation or nations, tribe or tribes of Indians set up or pretended any right or claim to the lands in question; nor any state or individual citizen or citizens, to the pre-emption right of the same.
That such being the state of your memorialists' claim and title, prior to the declaration of the independence of the United States, they conceive their rights remain sound and unforfeited, and have never been relinquished under the revolution, nor can be touched by any ex post facto ordinance or law, but continue unimpeached, and upon the same basis of law, and equity, as they were under the British government, prior to the revolution; saving to the United States the sovereignty over the citizens and settlers, in point of jurisdiction and government.
That your memorialists, nevertheless, considering the extent of their purchase and title, and that from reasons of policy and public good, states, as well as individual companies and societies, may and ought to accommodate their interests, to the interests and good order of the general government; and considering further, that subsequent negociations with the native Indians,
50notwithstanding the alienation of their property, may be necessary in order to a complete settlement of their country with their perfect consent, so far as sold and alienated, your memorialists in their last (in part) recited memorial, proposed "to surrender and convey to the United States the lands described, or meant to be described, in their deeds from the Indians; on the proviso, that the United States re-convey one fourth part of the said lands, to the company, according to such location or locations of the same as may be reasonably agreed upon; whereby the United States may derive from the true and native proprietors of the soil, a just and absolute title to a large and valuable tract of country not otherwise treated for, nor purchased by them, nor the pre-emption thereof; and this without any new purchase or consideration, except so far as is usual, in the recognition of purchases, and brightening the chain of friendship at subsequent treaties."
That in pursuance of our former memorial, to the effect above stated, the Senate and House of Representatives appointed committees of their respective bodies, to take the same into consideration and report thereon — That the said committees having met jointly and heard them, your memorialists, were pleased to report separately, viz.
Committee of the Senate.
The committee of the Senate, as followeth, viz.
"The committee of the Senate, to whom was referred the memorial of the Illinois and Wabash Land Companies, report —
"That the claims of the petitioners are founded on two deeds mentioned in the said petition;
one of which, to William Murray and others, who are called the Illinois company, is dated
51July 5th, 1773 ; and the other to lord Dunmore and others, who are stiled the Wabash company, bears date October 18th, 1775.
That the said petitioners have proposed to surrender and convey to the United States, all the lands described, or meant to be described, in the above mentioned deeds from the Indians, on the promise that the United States re-convey to the company one fourth part of the said lands.
"That, in the opinion of the committee, deeds obtained by private persons from the Indians, without any antecedent authority or subsequent confirmation from the government, could not (?) in the grantees mentioned in such deeds, a title to the lands therein described."
"That the petitioners do not suggest any such antecedent authority or subsequent confirmation in the present case; and THEREFORE, in the opinion of the committee, the said petitioners have not a legal title to the said lands."
"That the proceeds of the sales of lands in the western territory belonging to the United States, are appropriated towards discharging the debts, for the payment whereof the United States are holden."
"The petitioners alleged that the considerations specified in the said deeds were paid to the Indians, and were, at least, as valuable as any that were given on similar occasion; and that the Indians named in the said deeds, were owners of the land."
"ON THESE POINTS, the committee give no opinion; but for the reasons above expressed, they think it would not be expedient for the government of the United States, to accede to the aforementioned proposition of the petitioners."
Committee of the House of Representatives.
The committee of the House of Representatives, reported as followeth, viz.
52"The committee to whom was referred the memorial of the Illinois and Wabash Land Companies, report — "That the claims of the petitioners are founded on two deeds mentioned in the said petition, one of which, to William Murray and others, who are called the Illinois company, is dated 5th July, 1773, and the other to lord Dunmore and others, who are stiled the Wabash company, bears date, October 18th, 1775.
"That the said petitioners have proposed to surrender and convey to the United States, all the lands described, or meant to be described, in the above-mentioned deed from the Indians; on the proviso, that the United States re-convey to the company, one fourth part of the said lands.
"And that, in the opinion of the committee, the said deeds having been given by the Indians, proprietors of the soil, before the declaration of the independence of the United States, for a valuable consideration bona fide paid, are sufficient to extinguish the Indian title to the lands therein described."
"And therefore, that on principles of justice and equity, the United States should agree to the proposal aforesaid made by the petitioners."
The foregoing reports have not yet been taken into discussion by either House of Congress, and your memorialists cannot help being urgent that a decision should be speedily had, as the original cost and interest, exclusive of the consideration money to the Indians, amounts to forty thousand pounds sterling, at least.
The report of the committee of the House of Representatives, is "That on the principles of equity and justice, the United States should agree to our proposal." — The report of the committee
53of the Senate, is that "Deeds obtained by private persons from the Indians, without any antecedent authority or subsequent confirmation from the government, vest no title in the grantees." This we have already shewn, from the highest law authorities, was not the doctrine under the government of Great Britain, at the time of the purchase, and that no antecedent authority, nor subsequent confirmation, was necessary from that government, except in the case of the Six Nation Indians, who alone had sold their pre-emption rights to that government.
Your memorialists, therefore, anxious that this business should be brought to a speedy decision comporting with the magnanimity of the United States, and justice to all their citizens, respectfully pray — That the reports of the committees aforesaid, may be now taken up in their respective Houses, in order that if a compromise cannot be made, agreeably to the principles of the memorial, and the report of the committee of the House of Representatives, the Congress may, in their wisdom and justice, devise some method for a judicial decision of the principle on which the report of the committee of the Senate is founded.
And your memorialists shall ever pray, &c.
By order and on behalf of the Company,
JAMES WILSON, President.
No. I. To the Senate and House of Representatives Committees on the Illinois and Wabash Memorial.
of the SENATE & HOUSE OF REPRESENTATIVES
ILLINOIS AND WABASH MEMORIAL.
THE Committee of the United Illinois and Wabash "Companies," having now the honour to attend upon the honorable Committees of the Senate and House of Representatives of the United States, to support the prayer of their Memories delivered to both Houses of Congress, and to answer such questions and produce such other vouchers, as may be necessary, during the investigation of their claim; and having, in the 2d section of their memorial referred to certain proceedings of a Committee of Congress, under the old Confederation, in the year 1781, without bringing the Report of the said Committee, and the reasons of the same as offered to the Congress, into special view, we now think it our duty to supply that defect, in order, that if the present Committees of the Senate and House of Representatives should think it proper to retrospect those proceedings, we may point to the arguments which are scattered in our printed pamphlet herewith delivered, and some others
56that may be offered, in answer to the arguments of the Committee of 1781; being well assured that the present honourable Committee, will, in their great wisdom and candour, weigh both in the same equal and impartial scale.
The said Committee of 1781, after discussing at large some other similar claims and Indian grants, made prior to the Revolution, and recommending, "That in case certain of the said lands (in certain predicaments before set forth) should be ceded or adjudged to the United States Congress will fully and amply reimburse to them and each of them (remaining citizens of the United States) their heirs and assigns, their full shares and proportions of all their purchase money, expences and charges accrued on the said land, by distinct , and separate grants of lands out
But when the said committee of 1781, proceed to the Illinois and Wabash claims, then set up a destination, where it appears hard to shew even the shadow of a difference; or, at least, it seems hard to be found in the reasons subjoined to their Report — viz.
"Your committee, also, having fully considered the Petition of the Illinois and Wabash Companies, do report the following resolution — Resolved, — "That the Petition of the Illinois and Wabash Companies be dismissed.
1st. "It appeared to the Committee, by the confession of the Agent for the Company, that
57the said purchase had been made made, without the licence of the then government, or other public authority, contrary to the common and known usage in such case established."
Answer. — The agent for the Companies, by confessing that the purchase was made without the licence of the then Government," acted in proper character, by shewing, as the Company has since repeatedly shewn, that no licence was necessary, and that no usage forbid purchases from those Indians, (or any other than the six nations) either while they were connected with the French government of Canada, nor after the cession of Canada and its dependencies to the government of Great Britain in 1763. The agent had in his hand the opinion of Lord Chancellors York and Cambden to this purpose, dated August 1st, 1772, near a year before the Illinois purchase in July 1773, and more than three years before the Wabash purchase in October, 1775. And sundry purchases from those Indians under the French as well as the British governments, about Kaskaskias, Fort Charters and Post St. Vincent, were made of smaller tracts before and after the Illinois and Wabash purchase, without previous licence or subsequent confirmation from those governments, and now remain valid under the sanction of the United States — [See Cambden and York's opinion and the other arguments on this important question, stated at large from page 34 to 45 of our printed pamphlet, which accompanies our present memorial.
Second Reason of the Committee of 1781.
"That the purchases were made of certain Indians, without any public treaty or other act, of notoriety."
Answer, — The direct contrary of this is asserted and fully proved, by the Companies, not only from the face of their deeds, but by the records thereof, and other public documents of both treaties, held under the authority of the British government, at Kaskaskias, in June and July, 1773, and at Post St. Vincent, in September, 1775. (See the introduction to our printed pamphlet, and copies of the deeds and records thereof, from page 1 to page 26 of the same. The original deeds are ready to be produced and compared with the printed copies.)
Third Reason of the Committee.
"That one of the deeds, beginning on the north side of the Illinois river, contains only a number of lines without comprehending any land whatsoever."
Answer, — If this were the case, it could not vitiate the other deed, obtained at a different time, and from different nations. And if nothing be conveyed by the Indians, the United States will have nothing to treat for, or re-convey to the company. But the truth is, that the deed conveys a well-described tract of country. It has a well known place of beginning, and remarkable well known corners described, proceeding round to the said beginning, and the rectification of an error in a course or two, as to the points of the compass, closes the survey, maintaining all the corners which error must and would be corrected in law, even in the survey of a small plantation, where the corners are to be found; for a deed is not to be defeated by an error of the surveyor, or of a clerk in copying; more especially Indian deeds, which have always natural boundaries and natural corners, by which only they consider
59themselves to be bound; little regarding the estimated distances and points of the compass, nor any actual survey, except what agrees with the natural bounds.
Fourth Reason of the Committee.
"The Wabash purchase has been made since the present revolution, when Congress had an agent for Indian affairs, residing at Fort Pitt, who had no notice thereof."
Answer, — The purchase was made in October, 1775, near nine months before the declaration of independence; and before the United States had assumed governments of their own; and although labouring under and resisting oppression, they were then contending only for redress of grievances, and future peace, liberty and safety. On this head, and the substitution of the word revolution, at this period, as meant to convey the same idea as the assumption and exercise of independent government, we forbear to say any more; submitting ourselves entirely to the correction of the enlightened committees of the Senate and house of Representatives on a subject so truly delicate. As to an agent of Indian affairs at Fort Pitt, which was within the territory of the six nations, alienated at the treaty of Fort Stanwix, he could certainly have no controul over the Indians at Kaskaskias or Post St. Vincent, who, as said before, were and remain independent tribes, claiming the absolute disposition of their own property; so that, if such agent had then resided at Fort Pitt, of which we know nothing, it could not be any more necessary to notify him of the purchase, than it was, under the government of Great Britain, for us to have
60notified their Indian agent at Kaskaskias, or at Post St. Vincent; and the government of the United States, had then declared nothing rejecting Indian purchases, to place them on any new footing, or under any new restriction. This is conceded by the same committee of 1781, in an after resolution, proposed to Congress, and which could not operate ex post facto, viz.
"Your committee having been convinced, in the course of their investigation, that many inconveniences will arise to the citizens of these United States, unless the jurisdiction of the United States, with regard to Indian affairs, is more clearly defined and established, offer the following resolution, viz."
"That no person or persons,
But the committee of 1781, not trusting, as would appear, wholly to the reasons given above, add, lastly, as their 5th reason — "That the six nations and their tributaries, claim the same lands, in opposition to the Indians conveying the same in the deeds to the said companies."
Answer. — This is gratis dictum. The said committee have not offered a single proof in support of this assertion. On the contrary, as far as a negative can be proved, we beg leave to refer to our printed pamphlet, from page 29 to page 38, — to establish the claim and bounds of
61the six nations; and that they or their tributaries never claimed the lands in question. Of this, the government of the United States must, in their several treaties, with the natives, be well convinced; as knowing that the six nations have never set up, nor offered to sell to the Union, the right or pre-emption of the Illinois and Wabash lands; but that such pre-emption is to be obtained only by treaty, or purchase from those Indians themselves, who were always considered by France, as connected with the government of Canada; as appears among many other proofs, from the patent for Louisiana, in 1712, wherein the French comprehended within their dominion not only the Wabash, but all the waters of the Mississippi.
Having now, as briefly as possible, brought into one point of view, the most material heads of what we have to offer in support of the claim and title of the companies we represent, in order to save, as far as we can, the valuable time of the honorable committees of the Senate and House of Representatives, we cheerfully submit the whole to your wise and candid discussion, holding ourselves ready and bounden to furnish any other materials in our power, to aid your deliberations, if required.
No. II. Additional Statements.
ILLINOIS AND WABASH LAND COMPANIES.
AS it was suggested to us, at your last meeting, that it might be proper for us to furnish every additional proof or document, to support our allegation, "that the purchases were made, not only with sufficient notoriety at public treaties held under the authority of the crown of Great Britain, prior to the American revolution, but likewise from the true Indians, who are and ever were held and acknowledged to be the sole and absolute proprietors of the soil, since the first intercourse of European nations with that part of America, down to the time of the purchases, and to the present day; we hasten to acquit ourselves of that task, in order to enable the honorable
63committees to judge whether, by the said deeds to the companies, the original Indian title and right to the fee in the lands described, be not fully extinguished?
1. The deed of July 1773, is for part of that county bounded westerly by the Mississippi and Illinois rivers, extending easterly towards the Ohio and Wabash, as delineated in captain Hutchin's large map, by the name of the Illinois country; and the Indians, whose dwellings and hunting grounds are comprehended in it, were originally known by the general name of Illinois Indians, and their tribes distinguished afterwards, by the traders, &c. (as among the Iroquois and other nations) by the names of the villages and hunting grounds they occupied, bordering on the Mississippi and IIIinois rivers.
The tribes of Illinois Indians are the following, and no more; viz. 1. The Kaskaskias or Temoroas, who being the chief, sometimes have given name to the rest. 2. The Piorias [Pewarias] formerly including the Mitchegamics, 3. The Cahokias. And these are the identical tribes that signed the Illinois deed to the company and received the consideration; none other claiming, or having a right to claim any part or property with them, in the said lands. And these are the tribes that still claim the sole right of the remaining part of that country, not heretofore alienated by them to the Illinois company or to the French and English settlers, under the respective governments; as will fully appear, upon any investigation that may be proper, from the Indians themselves, as well as from the old and present settlers, about Kaskaskias, and the records of their deeds, as of the deed of the Illinois company.
64All this is confirmed by captain Hutchins, in the Topographical description, published for the illustration of his map, founded on his own knowledge; having resided in that country a considerable time as a British officer and engineer, and afterwards as a geographer; and having actually visited and surveyed a great part of it, as far as the settlements and villages of the Illinois Indians extended; having, as he tells us, been employed in the work "at different periods, partly as an engineer during all the campaigns of the war, and afterwards in reconnoitering tours, surveys, observations of latitudes, on the Ohio, Mississippi, and most of the other rivers west of the Alleghany mountain, between the years 1764 and 1775."
Giving an account of the tribes of Illinois Indians, and all their villages, he says — The Kaskaskias village of Whites, of which there are about 500, and between 4 and 500 negroes, lies five miles and a half up Kaskaskias river, which falls into the Mississippi, 90 miles above the mouth of the Ohio.
1. "Three miles northerly of Kaskaskias village [of the whites] is the village of the Kaskaskias tribe of Illinois Indians, containing about 210 persons and 60 warriors."
2. "A mile higher up the Mississippi than Fort Chartres (that is, about 103 miles above the mouth of the Ohio) is a village settled by 170 warriors of the Piorias and Mitchigamias, two other tribes of the Illinois Indians."
3. "Forty nine miles further northward of the Piorias's village, and one mile from the Mississippi, on the southerly side of a small river, he places the village Cahokia, so called from the Cahokia tribe of Illinois Indians,
65having 50 houses and 300 inhabitants, possessing 60 Negroes." The Kahokia tribe of Illinois Indians is small, and in his list of Indians, he places it near this village of their name.
These are all the tribes of Illinois Indians, and of the settlements of the Illinois Country, given by captain Hutchins; for he then crosses the Mississippi to the tribes, &c. on the Spanish side, viz. The village of St. Louis 4 miles higher than Cabokia — And here let it be observed, that the whole of his tribes of Illinois Indians are —
1st. The Kaskaskias tribe, about 93 miles above the mouth of the Ohio.
2d. The Piorias and Mithigamias, as a joint tribe of the Illinois Indians, about 10 miles higher than the Kaskaskias tribe, or 103 miles above the Ohio.
3d. The Kahokias (or Cahoquias) 49 miles higher than the Piorias, or 152 miles above the Ohio.
And let it be observed further (as we said before) that the chiefs of these three tribes, viz. the Kaskaskias the Piorias or Mitchegamies, under one chief, and the Cahokias, are the identical chiefs that execute the Illinois deed; and there could be none other, they having the whole authority of the Illinois nation. Capt. Hutchins gave fall testimony to this, and that after frequent conferences with those Indians, they never denied, but acknowledged, as they still do, the validity of the sale; as the Commandant captain Lord, did, who was a witness to the probate of the deed at Fort Gage, and afterwards interrogated the Indians by order of General Gage. Whether they continued satisfied with the bargain? [See the introduction to be printed account, which accompanies the memorial.]
In a list of the warriors or fighting men, computed to belong to all the different tribes of North America, by a French trader who resided many years at Detroit, (and who afterwards became a British subject) which was communicated to me by George Croghan, Esq. Deputy Superintendant of Indian Affairs, through the hands of General Bouquet, to be annexed to my account of his expedition against the Ohio Indians in 1764; the Kaskaskias and Piorias are set down in general, as the Illinois chief tribes; the Cabokias afterwards mentioned by Captain Hutchins, are not mentioned by the French trader — Captain Hutchins, who accompanied General Bouquet in 1764, did not make his surveys on the Ohio and Mississippi till from the year 1772 to 1775, when he added the Cahoquias to compleat the Illinois Tribes.
A short extract from the English Translation of M. Le Page Du Pratz's
Speaking of the bounds of Canada and Louisiana, as held under the French he says, Vol. I. p. 301. — "To the north of the Ohio (which he called Wabash) lies Canada, which inclines more to the east than the source of the Ohio, and extends to the country of the Illinois, which is reputed to be part of Louisiana — We have there a post (viz. in the Illinois country) near a village of that name called Tamarouas," (viz.
67one of the posts mentioned by Capt. Hutchins); but, continues he, "It is of little importance to dispute here about the limits of these two neighbouring colonies (Canada and Louisiana) as they BOTH APFERTAIR TO FRANCE.
We see, then, that the Illinois country, was part of Louisiana, and indeed was included in Louis XIVth's charter to Mr. Crezat, viz. "from the edge of the sea as far as the Illinois river, which Du Pratz places between the 45° and 46° of latitude; although not accurately, for it does not extend much beyond the 42°, Du Pratz, Vol. II. p. 155, gives an account, that the Mitchigamias and part of the Illinois Indians formerly joined the Arkansas to enable them to check the Chickesaws; so that there is now [in 1758] says he, "no longer any mention either of the Kappas or Mitchigamas, are now all adopted by the Arkansas;" so that, although the Mitchigamias once were in the same village with the Piorias, yet having afterwards joined the Arkanzas, a tribe different Å¤and possessing a different country from the Illinois or Mitchigamias could be concerned in the Illinois deed of 1773, the Piorias alone making one of the three tribes of Illinois. Vol. II. p. 149, — Speaking of the Illinois Indians as part of the South Western Confederacy, united against the incursions of the Iroquois, and who had long before desisted from their ravages, confining themselves within their own country; he says — "The Illinois are divided into several villages, such as the Tamarous, Kaskaskias, &c. The Illinois were one of the first nations whom we discovered in the colony, and they have always remained most FAITHFUL ALLIES OF THE FRENCH.
More need not be added on this head, viz., the Indians claiming and always acknowledged to have the right of soil, &c. to the Illinois country, by the name of Illinois Indians, divided generally into three chief tribes, Kaskaskias, Piorias and Cahokias; being, as the deed expresses, "Chiefs and sachems of the different tribes of the Illinois nations of Indians, effectually representing all the tribes of the Illinois Indians."
The country described in this deed is part of the territory of the Piankeshaw nation, whose grounds, by Captain Hutchins, and all others, are located "between the mouth of the Wabasb and the Miami rivers." Under the general name of Piankashaws the tribes named from their villages are comprehended, viz. Kickapoos, Musquitons and Quitanons; but they are all Piankeshaws, and not distinguished as chiefs, by their villages, in signing the deed; only that those who did sign the same — effectually represent all the several tribes of Piankeshaw Indians. In the list annexed to Bouquet's expedition, referred to before, the Wabash tribes are the same as above, viz. Kikapoos, Ouachtenons and Pianquichas; in short, our recent transactions and conferences with the Wabash Indians, will furnish ample testimony that the chiefs who signed the deed were the true lords of the soil; and the same will and must be acknowledged, on any proper enquiry at Post St. Vincent, Ouiatenon, &c.
As to the proclamation of the king of Great Britain, subsequent to the treaty of Paris in 1763, when that country, as a dependency of Canada, fell under his jurisdiction, as we have not had
69an opportunity of perusing it, we cannot ascertain whether it was intended to prohibit any other Indian purchases, except in the territory of the Six Nations, where the crown had the absolute pre-emption right; or whether a mere proclamation could prohibit such purchase? Indeed, where the crown had the pre-emption right, we have already stated, that posterior to that proclamation, the greatest crown lawyers had declared that neither the prior sanction, nor subsequent confirmation, of the king, were necessary, the property of the soil vesting in the grantee by the Indian grants;" and a royal governor being a party to one of the purchases, shews that he considered this as a sound law doctrine.
But whatever may be considered as the force of the proclamation, so far as subjects or citizens are purchasers, it certainly could not prohibit the Indians from selling or divesting themselves of their properly, for a satisfactory consideration, and where there was no fraud; and if it shall be found, that the sale was made by the true Indian proprietors, and that they have extinguished their title, we are persuaded that the government of the United States, would not reject a valid title, to the great injury of many of their good citizens; and, at a greater price, recur to the Indians for a new purchase, sinking in their pockets (viz. the Indians) the large sums that have been paid and expended by the first bona fide purchasers, who remain true and faithful citizens of the United States.
No. III. To the Senate and House of Representatives Committees on the Illinois and Wabash Memorial.
SENATE AND HOUSE OF REPRESENTATIVES
OF THE UNITED STATES,
Illinois and Wabash Land Purchases
The Subscribers, Agents for the Illinois and Wabash land companies, have received your letter, dated February 2d instant, notifying that you have come to "a resolution to adopt the former report of the Committee of the Senate of 25th March, 1792," — on which we beg leave to observe.
That, by adopting that report, the prayer of our memorial will stand wholly unnoticed, and we shall be left just where we were in 1792, with the same right to begin anew, respecting some proper decision of our claim.
The report of the Committee of the House of Representatives of March, 1792, was "that in their opinion, our deeds were sufficient to extinguish the Indian title to the lands therein described, and that on the principles of equity and justice, the United States, should agree to our proposal.
The report of the Committee of the Senate in 1792, now proposed to be adopted, was "that deeds obtained by private persons from the Indians, without any antecedent authority or
71subsequent confirmation from the government, vest no title in the grantees, and that it would not be expedient for the government of the United States to accede to our proposition."
The prayer of our Memorial was "That if a compromise could not be had upon the principles of the report of the committee of the House of Representatives in 1792, Congress in their wisdom and justice would devise some method or mode for a judicial decision of the principle, upon which the report of the Committee of the Senate of 1792, is founded."
But this report is now again proposed to be adopted, without the least notice of the prayer of our Memorial, which is its very essence; and we are, as already suggested, left to begin anew, and even on a worse footing than we stood before; in as much as the favourable report of one of the former Committees is rejected or passed over without notice; and the report of the other committee recommended for adoption, without any reason suggested, or reference to a judicial decision, on the point in question.
With much gratitude, we acknowledge the opportunity given us by the honorable committees, to produce every proper document, to shew that the Indian title was extinguished by the deeds to the companies; and if this question was brought forward in the proposed report of the committees, to be discussed in their respective Houses, issue would then be joined. And if it should be determined by Congress, that the Indian title was not extinguished by the deeds, there must be an end of the business, so far as a compromise was concerned, and the question of title capable of a constitutional determination, by resolves of the Legislature, acting as one party on behalf of the United States, without the citizen of the other
72party consenting — if again, on the other hand, it had been determined that the Indian title was bona fide extinguished, to the satisfaction of both branches of the Legislature, and that it was vested in the companies, according to their deeds; then the question would occur, whether vested absolutely in the grantees for their own use, or in trust for the nation, on the principle laid down by the committee of the former senate, respecting the "barr of private persons from making Indian purchases, as well before as since the Revolution." And on this head of constitutional legislative authority, we beg leave to insert a few extracts from a late charge given by one of the learned and independent judges of the Supreme Court of the Union.
"Some of the Judges in England, says he, have had the boldness to assert that an act of parliament made against natural equity is void." It is true, this opinion contradicts the doctrine of the omnipotence of parliament, to bind the subject in all cases whatsoever, and that their authority and Acts, are not be drawn into question in any other place, or by any other power — a doctrine from which the people of the United States justly revolted, we trust, never to be subjected to its effects again — "For, says the same upright judge, in England there is no written Constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different. What is a constitution? It is the form of government delineated by the mighty hand of the people, in which certain principles, or fundamental laws are established. The Constitution is certain and fixed. — It contains
73the permanent will of the people, and is the supreme law of the land — paramount to the power of the legislature, and can be revoked or altered only by the authority that made it."
"What are legislatures? Creatures of the Constitution — they owe their existence to the Constitution. It is their commission, and therefore, all their Acts must be conformable to it, else they will be void. — Whatever may be the case in other countries, yet, in this there can be no doubt, that every Act of the legislature, repugnant to the Constitution, is absolutely void." Speaking of points reserved to the people, by declarations of Rights and Constitutions — "As to these points, says he, there is no devolution of power. If the legislature had passed an act, declaring that in future, there should be no trial by jury, would it have been obligatory? No — it would have been void, for want of jurisdiction and constitutional extent of power." — Such also would be a law or any ex post facto act of legislature, impairing the right of contracts, or affecting life, liberty or property, as secured by the Constitution. "No person, continues he, can be called upon to surrender or sacrifice his property, for the community, without a recompence in value. The English history does not furnish an instance of the kind. The parliament, with all their boasted omnipotence, never committed such an outrage. The right of acquiring, possessing and protecting property, is natural, inherent and unalienable. It is a right, not ex-gratia from the legislature, but ex debito from the Constitution. Omnipotence in legislation is despotism." And elsewhere, it is laid down, that the judiciary power is not subordinate to, but coordinate with legislative and executive."