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Page:Harvard Law Review Volume 2.djvu/189

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in 1795, when the lands were in possession of the Chickasaw Indians, whose title was not extinguished until 18 19. It was ob- jected that the patent was void because it was issued for lands within a country claimed by Indians ; but the court replied, * That the colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the States of this Union after the Revolution, were made for lands within the Indian hunting-grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolution- ary war by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources that sustained the war, not only by these States but by others. The ultimate fee (encumbered with the Indian right of occupancy) was in the crown previous to the Revolution, and in the States of the Union afterwards, and subject to grant. This right of occupancy was protected by the political power and respected by the courts until extinguished, when the patentee took the unencumbered fee. So this court and the State courts have uniformly and often holden.' ( 13 Peters, 201. )**

The gp'owing power and necessities of civilization and the waning numbers and needs of the Indians led to what may be noted as the second period of our Indian history, the commencement of which is marked by the administration of Andrew Jackson, — a period continuing from 1829 to 1871, which may be characterized as the period of compulsory emigration under the form of consent by voluntary treaty. These treaties were made under the same form and theory of law as those of the preceding period, and abound in provisions for annuities, rations, aid toward agriculture and education, and various other considerations given or promised as an equivalent for removal and for accepting a limited reser\a- tion for occupancy.

During this period, whatever cruelties may be chargeable to the executive and legislative course of the government, the courts have always continued to maintain, to the full extent of the judicial power, — which is necessarily limited to litigated cases coming be- fore it, — the obligations of good faith as due from the government to the Indian people, and to declare those obligations not dimin- ished, but rather emphasized, by the changed conditions of the time. The course of decision oh this subject I cannot better indicate