Three Rivers
Hudson~Mohawk~Schoharie
History From America's Most Famous Valleys

English Crown Grants by S. L. Mershon, p 90

1918

THE INDIAN AND CROWN GRANTS.

It is a fully recognized fact of history that when the early European settlers landed upon the shores of Staten Island they then found it in full and complete possession of the American Indians. The Indians held undisputed sway over its villages, hunting and fishing grounds, and stood prepared and ready at any time to defend the same, as was clearly shown in their subsequent deeds of valor when resisting the unjust and offensive encroachments of the early settlers.

Authorities have somewhat disagreed as to the precise nature of the title held by the American Indians to the soil which they possessed. The continental chancellories of Europe, promptly upon the discovery of America, promulgated their decrees branding the American Indians as nomads. They laid down the proposition of international law that the European Government had an absolute right to each and every land on the American continents, which either they or their representative citizens should discover. Proprietorship by right of discovery was asserted, with utter disregard to what were the true and inalienable rights of the American Indians.

Modern historic research has disclosed the fact that the aborigines of America had their established and accepted forms of government; that the various tribes well understood and recognized the territorial bounds and limits of their respective domains.

"That it is a difficult matter to discover the true owner of any lands among the Indians is a gross error, which must arise from ignorance of the matter or from a cause which does not require explanation.

"Each nation is perfectly well acquainted with its exact original bounds; the same is again divided into due proportions for each tribe and afterwards subdivided into shares to each family, with all which they are most particularly acquainted. Neither do they ever infringe; upon one another or invade their neighbors' "hunting grounds." (Sir William Johnson to the Lords of Trade, 1764 A. D.)

In some cases single tribes were independent, selfreliant, and maintained their sovereignty and the integrity of their soil against all comers. In other cases. a powerful confederation was formed by treaty between a group of tribes. In other instances weaker tribes came by special treaty under the protection of more powerful neighbors.

To a large extent, peace and happiness prevailed among the tribes, each respecting the rights of the other in and to its own hunting and fishing grounds. Any invasion of these indispensable sources of food supply was always met by prompt defense and swift and fierce retribution.

A sharp distinction should be drawn between the attitude of the English Government towards the Indians and the general practice of the Colonists towards the natives.

The European settlers promptly appropriated the Indian's food supply from sea and land. The great pressure of a new advancing civilization forced the coastal tribes back upon the neighboring Interior tribes, in utter disregard of tribal boundaries. Antagonism and conflict immediately developed between the natives, superinduced by the white man's overthrow of the Indian's political, economic and tribal relations.

Tribes, evicted from the lands which they had Inherited from their forefathers, were driven by hunger to pirate upon the hunting and fishing grounds of other tribes which had heretofore been their friends. The latter, unable to spare food from their naturally sparse and limited supply, arose in arms and fought their former friendly neighbors.

This invasion by the white race upon the Indian civilization developed a period of intertribal wars that brought to the surface the fiercest elements in the Indian nature. These wars continued until the tribes became almost extinct or were driven far from their native soil.

The Indian first fought the white man in defense of his own land, villages and food supply; then the various Indian tribes fought among themselves, as exiles and wanderers struggling together for an insufficient food supply.

It is well understood that a majority of the first settlers were adventurers, pirates and freebooters of the sea. In many cases they were criminals, exiled from home, or were wild and dissipated sailors who were prepared to venture anything, and to commit almost any crime in order to repair their broken fortunes. The "Mayflower" and other ships with their precious cargoes of religious and freedom-loving exiles were like doves amidst the hawkes and vultures of the sea.

Information from the early Colonies passed slowly to the mother countries. Vivid and distorted accounts were given of the attitude of the natives and the acts of the settlers. The first impressions formed in England and on the continent of Europe regarding the aborigines were that they composed roving and cruel bands, better classed among the wild animals of the forest than to be considered a part of the human family.

Impressions formed and conclusions arrived at by European authorities based upon such erroneous information developed the doctrine which became woven into International law, that the American Indians were nomads or wanderers; that they were pagans and had no real vested or true title to the soil they occupied, and that they were unworthy of or in fact did not possess any real national life or substantial political existence.

History, however, shows that the English Government soon became better advised, and that the States General of Holland recognized to a degree the in justice of this dictum of the white civilization as pronounced against the red man.

Thoughtful historians and learned legal authorities have conceded that the Indians had somewhat more than a possessory right to the lands they occupied and have admitted that they had an inherent right in and to the title to the soil they occupied. The title so belonging to them, however, was vested in the tribe at large and not in the individual Indian. Justice gained a few points in the historic and judicial triumph for the Indian over the doctrine of nomadship; but even to this day, as appears in one of the decisions of the Supreme Court of the United States, the impression still prevails in many authoritative quarters, false though it be, that the Indian had only a general possessory right to their lands. (Johnson vs. Mclntosh 8 Wheat O. M., Rep. 543.)

In the above mentioned decision, emanating from the most profound and dignified judicial body in the world, the Court says, "The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the New by bestowing upon them civilization and Christianity in exchange for unlimited independence."

The fact remains that, in a deed made and executed by and between the Dutch and the Staten Island Indians for the sale by the latter to the former of Staten Island, the Dutch fully recognized a complete title to the Island as vested in the Indians and as having descended to them from their forefathers.

Later on, when the Staten Island Indians sold Staten Island to the Duke of York, the Dutch deed having proved abortive, the English fully recognized the title to the soil as being vested in the Indians and as having been derived by them from their ancestors. These two instruments, both quasi-official, representing two European powers, in effect committed the civilized world to the doctrine that the Staten Island Indians were the "true and lawful owners" of the Island, as having descended to them as a heritage from time immemorial.

Neither party to an executed and fulfilled contract, under which both parties have received and approved the benefits thereof, is in a legal position to deny its premises.

In the drafting of the foregoing deed, which in fact conveyed to the English the villages, together with the hunting and fishing grounds of the Staten Island Indians, neither party thereto deemed it essential that the said deed should set forth in detailed description the conveyance thereunder of uplands, beach, shore and lands under water.

The English Crown well understood that under English common law the presence of water on any portion of lands conveyed need not be set forth in the Instrument of conveyance.

The Indians fully realized, as did the English, that the conveyance of Staten Island to the English Crown carried with it the Indian's hunting and fishing grounds as well as the latter's unfailing source of food supply, the natural oyster beds connected therewith.

Staten Island historians, as well as many of the patriarchs of the villages in Richmond County, tell us that over against many of the old sites of the Indian villages on Staten Island were to be found until recent times enormous mounds of oyster shells that had required the industry of many generations to accumulate.

Modern etymology has opened up the secret of the Indian languages, and lo! it is found that their rivers, bays, seas and lands possessed names with descriptive meanings, which names had become traditional among the descending generations and were well and fully understood by their tribes.

These names now properly interpreted are conclusive proof that the Indians occupied fixed habitations, generation after generation, "for a period of time wherein the memory of their oldest men ran not to the contrary."

At the present time we find a pathetic remnant of the Shinnecock Indians living upon the site of one of their ancient Long Island villages. From time immemorial down to the present they have maintained their right in and to a portion of Shinnecock Bay. In those waters, without failure for centuries, they have planted and grown the almost unequalled Shinnecock oysters and clams.

It is an interesting fact, and worthy of note, that in many respects the Indian common law was strangely analogous to the English common law.

The Indian well understood that he was the owner of the beach, with all that the same implied. Hence, we find a certificate given on January 15th, 1662, by the Shinnecock Indians living on Long Island, to one Captain Topping. In this certificate they acknowledge the conveyance of a certain beach to him.

The Indians did not in anywise limit their titles to the beach. This we discover in an Indian deed to a shore front in King's County, New York. The deed was dated May 13th, 1664. The conveyance was for "both of upland and marshes anyway belonging thereto." We find also, in the same deed of conveyance, "beach or beaches, as namely that running out more westerly." In addition thereto we read, "with the island adjoining and is at the same time by the ocean sea wholly enclosed." It is well to consider the legal force and effect of the words "with" and "adjoining" as used by the Indians.

We have in the foregoing deed by the Indians a conveyance of upland, beaches "with the Island adjoining" thereto. All these were in close proximity and extending to and under tidal water. This deed made no reference to "riparian rights" or "lands below high water mark," or "submerged lands." The language was different, but equally clear and inclusive.

The Indian, as under English common law, deeded his land and did not consider water on the land as property to be included in a deed or mentioned in the description thereof.

That the Indians' and the English Crown's views as to deeds of conveyance for an island coincided most harmoniously Is happily illustrated in the case of Gardlner's Island, in Suffolk County, New York.

On May 3rd, 1639, the Indians executed a deed of conveyance thereto to Lyon Gardiner. The latter took possession thereof. The Gardiner family has, ever since that date, maintained possession thereof through the lineal descendants of the original grantee. They have held against the world a well recognized and perfect title to uplands, the land between high and low water mark, and the land extending out into and under the great deep below low water mark.

We find, however, in the colonial records that the English Crown also made a grant to the said Gardiner, conveying under the grant the same island without any detailed description contained therein covering uplands, beach and shore with the submerged lands.

The Province of New York joined in this same Grant by the Crown to Lyon Gardiner. Both the English Crown and the Province of New York have always recognized the full and complete title of the said Gardiner in the beach, shores and the land below low water mark.

After the Revolutionary War, and the incorporation of the State of New York, the policy of the State towards Gardlner's Island was and still is in complete harmony with the policy of the old Indian, the English Crown and the Province of New York. It has never asserted or claimed any shore front rights about Gardiner's Island.

On the other hand, the Gardiner family has never tolerated any trespass thereon by private citizen or body politic.

The rights granted to Lyon Gardiner and the rights granted to Lancaster Symes, by the English Crown, the Province of New York and the State of New York "are on all fours" with each other, excepting only, however, that from a legal viewpoint the description of lands conveyed under the Symes Grant is far more comprehensive than in the Grant to Gardiner.

The narrow constructlonist might imply from this statement relating to Gardiner's Island that possibly the Indian's part in the transaction was but a sale of the upland, they quitting the Island with no particular thought as to the lands under water.

Such a conclusion is but a misapprehension and misconception of the Indians' claim and right of title. On March i4th, 1648, the Indians made a deed of a certain tract of land to Theophilus Eaton and Stephen Goodyear. The deed covered a tract of land at what was known as Acquabauck, Long Island. The deed recites "together with the land and meadow lying in the other side of the water southward.

Here is a deed given by the Indians for land on both sides of and in the waterway, or stream. The English and the American common law both admit that the Indians must have owned from each shore to the center or thread of the stream. The tribe held proprietorship below low water mark. The doctrine of Christendom is that "there is no land without a Lord."

Unless we strip the poor Indian of the commonest rights accorded to the meanest citizen in England or America under similar circumstances, this latter conveyance by the Indians was a proper exercise of the rights of proprietorship, as the waters of the stream were tidal waters and involved every class of land from upland to submerged land below low water mark. Most assuredly both parties to the transaction so understood it and acted upon it.

To make clear, however, that the Indians really: understood what the term submerged lands meant, when making deeds, the Massachusetts colonial records disclose a deed made by the native Indians ,in which the name used, "Aupauk," in itself, when translated, means, "the flooded or overflowed land." The Indian's dear, clean and comprehensive knowledge of his rights to lands under water are also disclosed in an agreement bearing date 1665, which reads as follows:

"The bounds agreed upon between the Shinnecock and the Unchechauke Indians before the Governor Nicoll are, "That the Shinnecock bounds to the westward are to Apaucock Creek. That the Unchechauke bounds to the east are Apaucock Creek; that the middle of the river is the utmost bounds to each, but that either nation may cut flaggs for their use on either side of the river without molestacon or breach of the Limetts agreed!" (Book of Deeds, Vol. II, p. 125, Office of Secretary of State, Albany, N. Y.)

This agreement clearly shows that two neighboring Indian tribes claimed and each recognized in the other title to lands under water. The agreement also contains a reciprocity clause that would have done credit to the Hon. James G. Blaine or to the Hon. John Hay.

In the year 1667 the inhabitants of South Hampton, in New York Province, brought an action against the inhabitants of Southold in the New York Provincial Court of Assize to determine the boundary between the two towns based upon the purchase of lands from the different Indian tribes. A witness by the name of Edmund Shaw testified that the Chief of the Montauk Indians had shown him that one tribe owned the land to high water mark on the opposite side of the river, and to prove it took him to the opposite bank and showed him a tree marked by the Indians. Two Indians were called to rebut that testimony. They testified that each of the two tribes on the opposite sides of the river owned to the center or thread of the stream. To prove this they related how a dead bear was found floating in the stream and its carcass was divided between the two tribes, one tribe taking the flesh and the other tribe the skin and the grease. The Court decided that each tribe's title extended to the middle of the stream. This was a tidal river.

Important and incontrovertible evidence is at hand revealing the fact that the Indians held proprietorship to their fishing grounds on the Atlantic Coast as an absolutely necessary and vital source of food supply and that it was their custom to resort thereto in time of famine as well as in time of plenty.

We quote from a letter written by Roger Williams to Governor Vane in 1637: "The Pequots are scarce of provision and therefore {as usual, so now especially) they are in some numbers come down to the seaside (and to islands by name Munnawtawkit and Manattuwond especially) to take sturgeon and other fish, as also to make new fields of corn in case the English should destroy their fields at home."

It is a well-known fact that the early settlers found the Indian with his fishing weirs established In the tidal streams. The Colonists quickly Imitated him in this practice, and in Instances secured Grants for the establishment of the same, by them, in navigable waters. We have in point Governor Andrus's Grant made In 1676 to John Cooper, giving to the latter the right to establish fishing weirs in two tidal streams on Long Island.

In order to throw additional light on this subject, it may be stated that there were many places along the Atlantic Coast referred to and described in deeds by the Indians, which, when interpreted, mean "fishing places." As fishing is not for the uplands, it is fair and logical to presume that such places so referred to in deeds made by the Indians comprehended lands under water.

The wardship thrown about the American Indians by the English Government in Colonial times was not an impairment or in derogation of the proprietorship rights of the American Indians, either tribal or as individuals.

So keen was the commercial Instinct in the white race and so innocent and unsophisticated were the American Indians in the matter of bargain and sale, that had the English Government not thrown about the Indian tribes its paternalistic protection in the matter of the title to their villages, fishing and hunting grounds, the deceit and treachery of many of the early settlers would have precipitated many additional frontier conflicts.

Pursuant to such benign policy, the English Government, when having political jurisdiction over lands owned and possessed by the Indians, would not permit the native tribes to sell their lands to the settlers without the sanction of the Crown. Apparently this power asserted by the English Government was never used arbitrarily against the natives.

It was not in essence the denial of a title in and to the right on the part of the Indian to sell the land in question. It was but a regulation under the police power pertaining to political sovereignty and solely exercised for the protection of the natives against unscrupulous traders.

Until the year 1871 the policy of the Federal Government of the United States was strictly correct in its professed attitude toward the respective Indian tribes as independent sovereignties. It conceded to them the right of treaty with the United States Government upon terms of national equality. Many treaties were made between the Federal Government and the respective tribes, in reference to lands owned by the Indians, as well as matters of trade and other relations.

International law does not admit wandering tribes and roving bands into the sisterhood of nations. Where great Sovereign powers, like the Federal Government of the United States enters into treaty relations with political organizations on a plane of equality and mutual respect, it is in itself an admission of nationality, which carries with it not only independent political sovereignty but fixed habitation on lands of independent proprietorship.

It is true that the Federal Government prohibited the Indian tribes in the United States from making or entering into treaties with political powers other than the Federal Government. This had nothing to do with the sovereignty or proprietorship rights of the Indians, excepting only that the necessity of defense of its national life compelled such an attitude on the part of the Federal Government.

"Necessity is paramount to law."

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