OCR Text |
Show COMHISSIONER OF INDIAN AFFAIRS. lxvii those rights are still preserved, unless theIndians forfeited them by feilnre to present their daims to the board of land commissioners appointed by the sot of Mmh 3, 1851. The nations of Europe, in whose behalf discoveries and settlements were made on this oontinent, established among themselves by common consent the principle that disoovery gave title to the government by whose snbjeot or antbority it wen made. The relations between the discovering nations snd the natives were matters of reg-nlation, hut it became the universal rule that, where the lands were in the aotnal nossession of Indisna. the ultimate fee (encumbered with the Indian right of ocoa-paocg) alhould hn considered to be in the dl~coveriog soscmign and ira sllcooawre; with the coodition attached thnr tl~epaliticslpnweralooo-tllelegislativeor rxeootive I department-might extinguish the indian right of occupancy, ind leave the fee nn-encumbered to pass to the grantee or patentee of the Qovernment. (Clarkvs. Smith, 13 Peters, 195; Johnson vs. Mackintosh, 8 Wheaton, 575.) With tha qnestianof extin-goiahment the courts have nothing whativer ,b do, except to inquire whethar the right of oocapancy hss been extinguishedby the legislative or executive department. Of course the dominant powera were not required to recognize any right in the na. tives to the soil which the former had acquired by oonqneat. Bnt, while L'claiming the right to acquire and dispose of the soil, the discoverers recognized the right of oecupancy-au~nfmatuaw right in the natives. They accordingly made grants of land ooonpied by Indians, and thesegrants Tare held to aonveya title to thsgrantees, snbjeot only to the Indian right of ooonpmo)-. (Rotte vs. N. P. R. R. Co., 7 Supreme I Coort, 100; Bntoher us. Witherly, 95 U. S., 517.) Among all the sovereigns who eatablishad a foothold on thiscontinent none meni-festedso great an interest in the Indiann-so great a~olicitndafo r their welfare and happiness-as the Spaniards. The Kingsof Spain recognized in the Indian an inferior man, committed by Divine Providence to their benevolent charge, and to be elevated by their kinduess aod instruction to the dignity and condition of a Christian (2 White's Kew Recap., 40-48.) Pueblos or settlements were established for them. They were given the right of possession within them. Full provision for this was made nrior to 1815. when the anoestom of theae defendants took possession-and of eouree prtor to 111" adoption of tlre plan of Iguala. Not only is rbe 1%\v tim rhe earalb-liehluenr of rile pneblo olllnr than the titlc oi.\lnxir.o, ltut rllo aotnal eatabliahn~ent of the Indiana in uueblos aud the settlement of the ancestors of the defendants thereon antedated the succession of Mexiao. The Mexican nation wrss hound to reapect the riyhta of the Indians, for under the plan of I g ~ a l a"t he person and prop-ertv of everv oitieen (Afrioan or Indian) shall be res~eoted and protected hv the Glovei-nment." And that these rights were respected is apparent fmm the terms of the grant to Estudillo. In the petition of Estndillo to the governor he promises not to molest the Indian inhebitanis ; the petition wrts referred to the prefect fa? prooeed-ings to be had, inquiring espaoially as to the wiah or dewires of the Indiaus; a return was made that the lodims ware "willing that the applicant should settle upon the place, the mentioned Indiaus offering furthermore that as Boon as the land willbe occupied those of them who are moving aboot will get together and live contented; t h s t the land, formerly apart of the Mission of San Luis Rey, is now vsoant;" and in the -= ant the first condition imnosed is that he shall in no wav disturb or molest the Indians who are established or living thereon. It ia provided: "Fifth : If he contra-vene these oonditiow ha will forfeit his rig.h t to the land and i t shall he open to de-nollnoement by another party." It most he presumed that all these inquiries and conditions were made in accord-anas with the principles of existing law, and that the grant in pursuance thereof protected tbe possession of the Indians aa against the proprietary ownership of the grantee. There is nothing in the colonization laws of ld24 or the regolationn of 182.8 inl iei~t i reo f a purpose by Mexico to depart from the traditional ppolioy of the Span- |