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Claiming the New World: Empire, Law, and Indigenous Rights in the Mohegan Case, 1704–1743

Published online by Cambridge University Press:  09 May 2011

Extract

In 1773, with the empire on the brink of revolt, the Privy Council gave the final ruling in the case of the Mohegan Indians versus the colony of Connecticut. Thus ended what one eighteenth-century lawyer called “the greatest cause that ever was heard at the Council Board.” After a decades-long battle for their rights, involving several appeals to the Crown, three royal commissions, and the highest court in the empire, the Mohegans' case against Connecticut was dismissed. The dispute centered on a large tract of land (~20,000 acres) in southeastern Connecticut, which, the Mohegans claimed, the colony had reserved for them in the late seventeenth century. Concerned that the colony had violated its agreements, the Mohegans, aided by powerful colonists with a pecuniary interest in this tract of land, appealed to the Crown for redress. As a result of this appeal, what had been a narrow dispute over land became part of a larger conflict between the Crown, the colony, and the tribe over property and autonomy in the empire.

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Copyright © the American Society for Legal History, Inc. 2011

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References

1. Quoted in Smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 418Google Scholar.

2. For the decision, see Munro, James, ed., Acts of the Privy Council of England, Colonial Series. Volume V (Kraus Reprint, 1966; Orig. Pub., London, 1912)Google Scholar, 218 (hereinafter, APC). The decision was issued on January 15, 1773, based upon a December 19th committee report.

3. Walters, Mark D., “Mohegan Indians v. Connecticut (1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America,” Osgoode Hall Law Journal 33 (1995): 785829Google Scholar; Conroy, David, “The Defense of Indian Land Rights: William Bollan and the Mohegan Case in 1743,” Proceedings of the American Antiquarian Society 103 (1993): 395424Google Scholar; and Den Ouden, Amy E., Beyond Conquest: Native Peoples and the Struggle for History in New England (Lincoln: The University of Nebraska Press, 2005), 91141Google Scholar. There is no book-length history of the Mohegan case (Paul Grant-Costa's 2008 Yale dissertation The Last Indian War in New England: The Mohegan Indians v. The Governour and Company of the Colony of Connecticut, 1703–1774 was not available to scholars while I was researching and writing this article). In addition to the above, I have relied on: De Forest, J.W., History of the Indians of Connecticut from the Earliest Known Period to 1850 (Hartford: W.J. Hammersley, 1852)Google Scholar; Smith, Appeals to the Privy Council, 422–42; Oberg, Michael Leroy, Uncas: First of the Mohegans (Ithaca: Cornell University Press, 2003)Google Scholar; and Jean, Wendy B. St., “Inventing Guardianship: the Mohegan Indians and their Protectors,” The New England Quarterly 72 (1999): 362–87CrossRefGoogle Scholar. All of the important documents for the case can be found in an eighteenth-century collection: The Governor and Company of Connecticut and Mohegan Indians, by their Guardians. Certified Copy of the Book of Proceedings before the Commissioners of Review, 1743 (London: W. and J. Richardson, 1769)Google Scholar. I have used this collection as it is the published version of the official record of the case, and was submitted to the Privy Council following the 1743 commission.

4. Although the efflorescence of scholarship on Native Americans in the last generation has produced rich accounts of contact, conflict, and co-existence between these two peoples, it has emphasized culture over law, and therefore has not examined the legal arguments about dispossession in any depth. For an overview of this new Indian history, see Merrell, James, “‘The Customes of our Countrey’: Indians and Colonists in Early America,” in Strangers within the Realm: Cultural Margins of the First British Empire, eds. Bailyn, Bernard and Morgan, Philip (Chapel Hill: The University of North Carolina Press, 1991), 117–56Google Scholar.

5. Hermes, Katherine A., “The Law of Native Americans, to 1815,” in The Cambridge History of Law in America: Volume 1. Early America (1580–1815), eds. Grossberg, Michael and Tomlins, Christopher (New York: Cambridge University Press, 2008), 46Google Scholar. Pulsipher, Jenny, Subjects unto the Same King: Indians, English, and the Contest for Authority in Colonial New England (Philadelphia: The University of Pennsylvania Press, 2005), 269CrossRefGoogle Scholar. Yasuhide Kawashima makes a similar claim, arguing that the “Puritans' aggressive extension of their jurisdiction … led directly to King Philip's War, which marked the end of legal coexistence between Indians and whites”; as well, he argues that after the war “independent tribal government virtually disappeared from southern New England.” See Kawashima, , Puritan Justice and the Indian: White Man's Law in Massachusetts, 1630–1763 (Middletown: Wesleyan University Press, 1986), 233, 234Google Scholar. On the years before King Philip's War as an era of shared sovereignty, see Hermes, , “Jurisdiction in the Colonial Northeast: Algonquian, English and French Governance,” The American Journal of Legal History 43 (1999): 5273CrossRefGoogle Scholar; and Hermes, , “‘Justice Will Be Done Us’: Algonquian Demands for Reciprocity in the Courts of European Settlers,” in The Many Legalities of Early America, eds. Tomlins, Christopher and Mann, Bruce (Chapel Hill: The University of North Carolina Press, 2001), 123–49Google Scholar.

6. For two of the most influential works, see Williams, Robert A. Jr, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990)Google Scholar; and Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999)Google Scholar.

7. For the arguments of Francisco Vitoria, one of the leading figures in the sixteenth-century Spanish debates, see Anghie, Anthony, “Francisco De Vitoria and the Colonial Origins of International Law,” Social & Legal Studies 5 (1996): 321–36CrossRefGoogle Scholar. For an account of Vitoria and his followers which argues that they were defenders of indigenous rights, see Pagden, Anthony, “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians,” in The Languages of Political Theory in Early Modern Europe, ed. Pagden, Anthony (Cambridge: Cambridge University Press, 1987), 99119CrossRefGoogle Scholar.

8. But as Andrew Fitzmaurice has recently argued, the doctrine of terra nullius was not employed by Europeans until well into the nineteenth century. Instead, Fitzmaurice contends that early modern theorists employed a natural law argument derived from Roman law in which the first taker of unoccupied land becomes its owner. However, as Fitzmaurice points out, this doctrine was—especially in the Iberian world—used to defend indigenous rights on the grounds that the indigenous people were in fact occupying and using the land. Nevertheless, he argues that the English, beginning in the early seventeenth century and culminating in the work of John Locke, inverted this argument, contending that the indigenous peoples of the Americas were not in fact using the land in ways that would confer legitimate rights of ownership and sovereignty. On these points, see Fitzmaurice, , “The Genealogy of Terra Nullius,” Australian Historical Studies 129 (2007): 78Google Scholar; and Fitzmaurice, “Moral Uncertainty in the Dispossession of the Native Americans,” in Virginia in the Atlantic World, 1550–1624, ed. Mancall, Peter (Chapel Hill: The University of North Carolina Press, 2007), 383409Google Scholar.

9. According to Pagden, Anthony, “The res nullius argument, with Locke's development of it, was … the most powerful and the most frequently cited legitimation of the British presence in America.” Pagden, “The Struggle for Legitimacy and the Image of Empire in the Atlantic to c.1700,” in The Oxford History of the British Empire. Volume I: The Origins of Empire: British Overseas Enterprise to the Close of the Seventeenth Century, ed. Canny, Nicholas (New York: Oxford University Press, 1998), 47Google Scholar. David Armitage makes a similar claim: “From the 1620s to the 1680s in Britain, and then in North America, Australia and Africa well into the nineteenth century, the argument from vacancy (vacuum domicilium) or absence of ownership (terra nullius) became a standard formulation for English, and later British dispossession of indigenous peoples.” Armitage, , The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), 97CrossRefGoogle Scholar. On the connection between indigenous systems of property and indigenous people's capacity to govern themselves, see Buchan, Bruce, “The Empire of Political Thought: Civilization, Savagery, and the Perceptions of Indigenous Government,” History of the Human Sciences 18 (2002): 122CrossRefGoogle Scholar. On the role that Locke's ideas played in justifying empire, see Tully's, James seminal articles: “Rediscovering America: The Two Treatises and Aboriginal Rights,” in Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137–76CrossRefGoogle Scholar; Aborginal Property and Western Theory: Recovering a Middle Ground,” Social Philosophy and Policy 11 (1994): 153180CrossRefGoogle Scholar; and “Placing the ‘Two Treatises’,” in Political Discourse in Early Modern Britain, eds. Phillipson, Nicholas and Skinner, Quentin, (Cambridge: Cambridge University Press, 1993), 253–80CrossRefGoogle Scholar; as well as, Arneil, Barbara, John Locke and America: The Defence of English Colonialism (Oxford: The Clarendon Press, 1996)CrossRefGoogle Scholar; and Ivison, Duncan, “Locke, Liberalism and Empire,” in The Philosophy of John Locke: New Perspectives, ed. Anstey, Peter (London: Routledge, 2003), 86105Google Scholar.

10. Pagden, “The Struggle for Legitimacy,” 44. According to Richard Tuck, Locke was the most explicit of all the major natural law theorists on the European right to appropriate Native American property, arguing, contra Grotius, that they could not have jurisdiction over land that they had not cultivated. See Tuck, Rights of War and Peace, 175–76.

11. Armitage, David, “John Locke, Carolina, and the Two Treatises of Government,” Political Theory 32 (2004): 618CrossRefGoogle Scholar. In the literature on Locke and empire there is some dispute over whether he invoked a right of war against the Natives for denying the English access to “waste” lands. Richard Tuck and James Tully both argue that he did. See Tuck, Rights of War and Peace, 177; and Tully, “Rediscovering America,” 143. For a contrary view, see Arneil, John Locke and America, 163–65.

12. However, recent scholarship has begun to question this connection. In addition to the work of Andrew Fitzmaurice on the Spanish scholastics' criticism of empire cited in note 8 above, Lauren Benton and Benjamin Straumann have recently argued that “it was not until the second half of the eighteenth-century that writers on the law of nations developed a theory of occupation and res nullius more amenable to the needs of expanding empires.” For most of the early modern period, they claim, the idea of res nullius was used “mainly to ends critical of empire.” See Benton and Straumann, , “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” Law and History Review 28 (2010): 25–6Google Scholar.

13. In making this distinction, I have been influenced by Benton and Straumann's call for a closer examination of how imperial claims were made in practice in early modern empires. In their view, scholars have too easily assumed “the existence of direct and clear connections between the writings of jurists and scholars in Europe and the actions or pronouncements of imperial agents in empire.” See “Acquiring Empire by Law,” 1–2.

14. As argued most recently by Banner, Stuart, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Harvard University Press, 2005)CrossRefGoogle Scholar.

15. Stuart Banner sees a sharp dichotomy between English theory and colonial practice in early America, arguing that “there is no evidence that the Two Treatises caused anyone in colonial North American to cease respecting Indian property rights or to stop purchasing land from the Indians.” Banner, How the Indians Lost Their Land, 48. Brian Slattery is equally critical of scholars who assume that the “New World” was “a legal vacuum” and that neither the British nor the French Crowns recognized the sovereignty or the property rights of Native Americans. Slattery, “Paper Empires: The Legal Dimensions of French and English Ventures in North America,” in Despotic Dominion: Property Rights in British Settler Societies, eds. McLaren, John, Buck, A.R., and Wright, Nancy E. (Vancouver: U.B.C. Press, 2005), 50Google Scholar. It should be noted, however, that the colonial reading of such figures as Grotius and Locke is grounded in their work as imperial policy makers. See Armitage, “John Locke, Carolina, and the Two Treatises of Government”; and van Ittersum, Martine, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Leiden: Brill Academic Publishers, 2006)CrossRefGoogle Scholar.

16. On legal pluralism in early modern empires, see Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar.

17. According to Richard Johnson, the Mohegans were “born of intra-tribal factionalism . . . they elected from the first to consolidate their separate identity through alliance with the whites, as when they promptly joined in the coalition already forming against their own Pequot kinsmen and shared the spoils of victory.” Johnson, , “The Search for a Usable Indian: An Aspect of the Defense of Colonial New England,” The Journal of American History 64 (1977): 646CrossRefGoogle Scholar.

18. For an account of his life, see Oberg, Uncas. For the conflict between Uncas and Sassacus as an example of pre-contact native factionalism, see Metcalf, P. Richard, “Who Should Rule at Home? Native American Politics and Indian-White Relations,” Journal of American History 61 (1974): 651–65CrossRefGoogle Scholar.

19. Oberg, Uncas, 50.

20. For the relationship between Uncas and Mason, see St. Jean, “Inventing Guardianship.”

21. St. Jean, “Inventing Guardianship,” 368.

22. On Connecticut's territorial ambitions, see Dunn, Richard, “John Winthrop, Jr., and the Narragansett Country,” The William and Mary Quarterly 13 (1956): 6886CrossRefGoogle Scholar.

23. For the text of the treaty, see The Governor and Company, 33–34.

24. The deed is reprinted in Baker, Henry, History of Montville, Connecticut, formerly the North Parish of New London, from 1640–1896 (Hartford: Lockwood & Brainard Co., 1896), 11Google Scholar.

25. Oberg, Uncas, 89–90.

26. Ibid., 155.

27. Ibid., 154. Wendy St. Jean compares the relationship between Mason and Uncas to that of the “squirrel king,” a practice common among “southeastern Indian clans” who cultivated a relationship with a powerful individual in a rival tribe so that he would promote their interests with his people. St. Jean, “Inventing Guardianship,” 366–67.

28. De Forest, History, 292–93.

29. St. Jean, “Inventing Guardianship,” 375–77; and The Governor and Company, 41–42.

30. St. Jean, “Inventing Guardianship,” 378. It is not clear from the surviving records just what percentage of the lands the Mohegans held prior to Uncas' alliance with Mason were left at the time of Mason's entailment. On this entailment, see also De Forest, History, 293–94.

31. Kawashima says that the General Court gave 600 acres to New London in 1679. Kawashima, Yasuhide, “Uncas's Struggle for Survival: The Mohegans and Connecticut Law in the Seventeenth Century,” Connecticut History 43 (2004): 119131Google Scholar. See also De Forest, History, 294–95.

32. On the rise of “frontier interests” bent on dispossessing Native Americans, see Oberg, Michael, Dominion and Civility: English Imperialism and Native America, 1585–1685 (Ithaca: Cornell University Press, 1999), 219Google Scholar.

33. On Uncas's attempts to seek legal redress in the colony's courts as well as before the General Court, see Yasuhide Kawashima, “Uncas's Struggle for Survival,” 119–31.

34. Oberg argues that Uncas most likely understood this grant to be a right of pre-emption or first purchase, similar to his earlier dealings with the Masons. See Oberg, Uncas, 200–201.

35. For the text of the treaty, see The Governor and Company, 39–41. The terms of the treaty are discussed in De Forest, History, 295–96.

36. This was the Treat and Talcott commission. For its claim that the Mohegans had alienated the “greatest part” of their lands to the colony, see The Governor and Company, 36. On the commission's findings, see also Oberg, Uncas, 204.

37. St. Jean, “Inventing Guardianship,” 382–85.

38. De Forest, History, 297, also refers to other, smaller tracts, as well as “considerable quantities” of land in Windham county. Oberg, Uncas, 204–5.

39. Den Ouden claims that “such transactions may have regularly taken place without the consent or consideration of the larger community of Mohegans.” Den Ouden, Beyond Conquest, 102. Den Ouden estimates that Oweneco made at least twenty-five deeds of sale to colonists between 1659 and 1710. However, according to William Bollan, the Mohegans' lawyer before the 1743 royal commission, Uncas deeded the sequestered lands to the tribe in 1683. See The Governor and Company, 89.

40. De Forest, History, 290–91. According to De Forest, “The Norwich and New London records abound with deeds, conveying tracts, of usually from one to five or six hundred acres, to various persons of these towns.”

41. For the deed, see The Governor and Company, 43.

42. De Forest, History, 290.

43. The Governor and Company, 27–29. For the continual incursions on the Mohegans' planting and hunting grounds, see Smith, Appeals to the Privy Council, 424; and St. Jean, “Inventing Guardianship,” 385.

44. On this, see The Governor and Company, 52–53.

45. See The Governor and Company, 28.

46. Oberg, Uncas, 206. This was in September 1703. In May, the General Court had passed an act to enlarge the bounds of New London, followed by a patent to the town in 1704. See Den Ouden, Beyond Conquest, 105–7. According to Den Ouden, by 1704 the planting grounds—the “thirty-two-square-mile tract of land (20,480 acres) between New London and Norwich”—were “encompassed by the newly enlarged town of New London.” Den Ouden, Beyond Conquest, 98.

47. The Governor and Company, 54–55.

48. Ibid., 57–58.

49. The Hallams were challenging the disposition of their stepfather's estate by a Connecticut court. They were joined in their appeal to the Crown by Edward Palmes, the brother-in-law of Fitz-John Winthrop, who was also contesting the legality of a will. The Privy Council ruled against them, although it upheld their right to appeal to the Crown notwithstanding the charter. See Taylor, Robert, Colonial Connecticut: A History (New York: KTO Press, 1979), 195–97Google Scholar. On the Crown's inherent right to hear appeals from all of its subjects, see Sosin, J.M., English America and Imperial Inconstancy: The Rise of Provincial Autonomy, 1696–1715 (Lincoln: University of Nebraska Press, 1985), 179Google Scholar. The private colonies' denial of such a right was a central grievance in the Board of Trade's case against them. On this, see Kellogg, Louise P., The American Colonial Charter (Washington: Government Printing Office, 1904), 267–72Google Scholar.

50. “Case of the Mohegan Indians in Connecticut” (February 1, 1704), summarized in Calendar of State Papers, Colonial Series, No. 56. Volume 22 (1704–1705), ed. Cecil Headlam (London: Her Majesty's Stationary Office, 1916), 25 (hereinafter, CSPC). For Hallam's December 3rd memorial to the Board of Trade, see CSPC, No, 1353. Volume 21 (1702–1703), 856–7. Although Kellogg claims that William Blathwayt, the great opponent of chartered government, “became Oweneco's patron,” there is no evidence that Oweneco travelled to London with Hallam. Kellogg, The American Colonial Charter, 302. Hallam suggests as much in his January 8, 1704, affidavit, where he informed the Board of Trade that “Ben Unkas, one of the Mohegan Indian Sachems” had told him that if he “had money he would go for England and make his complaint.” CSPC, No, 11. Volume 22 (1704–1705), 4–5. For sharing his research on this point, I am indebted to Paul Grant-Costa.

51. Owaneko, Chief Sachem or Prince of the Moheagan-Indians in New England, HIS Letter to a Gentleman Now in London (London: Printed for Daniel Brown at the Black Swan without Temple-Bar, 1704), 1–2. The title page claims that Oweneco's letter was “Faithfully Translated from the Original in the Indian Language.” It is a verbatim copy of a letter Oweneco wrote to Nicholas Hallam on July 14, 1703, which bore the sachem's mark, as well as a claim that it was “The true Interpretation of Oanhekoe's Grievance & Narration, by me John Stanton Interpreter Gent.” Oweneco's letter is reprinted (with an interpretive essay by David Murray) in Early Native Literacies in New England: A Documentary and Critical Anthology, eds. Bross, Katrina and Wyss, Hilary E. (Amherst: University of Massachusetts Press, 2008), 1527Google Scholar.

52. A point made by David Murray in Early Native Literacies in New England, 25–27.

53. CSPC, No, 1353. Volume 21 (1702–1703), 856.

54. For pre-contact Algonquin ideas of political authority, see Bragdon, Kathleen J., Native People of Southern New England, 1500–1600 (Norman: University of Oklahoma Press, 1996), 141–55Google Scholar. According to Jenny Pulsipher, in the eighteenth century the Wabanakis viewed the English King as a “paramount sachem” who offered protection in return for loyalty, but without interfering in the tribe's “local governance.” Pulsipher also says that this was not inconsistent with indigenous claims to be subjects of the Crown. See Pulsipher, , “‘Dark Cloud Rising from the East’: Indian Sovereignty and the Coming of King William's War in New England,” The New England Quarterly LXXX (2007): 592Google Scholar.

55. Owaneko, Chief Sachem or Prince of the Moheagan-Indians in New England, 3.

56. CSPC, No, 146. Volume 22 (1704–1705), 60–61.

57. CSPC, No, 181. Volume 22 (1704–1705), 76–77.

58. The Governor and Company, 24.

59. CSPC, No, 171. Volume 22 (1704–1705), 72–73.

60. See Pulsipher, Subjects unto the Same King, 54–55.

61. Smith, Appeals to the Privy Council, 418. Mark Walters contends that “the Crown had an inherent power as sovereign of the empire to manage relations and determine disputes between components of the empire.” See Walters, “Mohegan Indians v. Connecticut,” 808–809.

62. Walters, “Mohegan Indians v. Connecticut,” 801. In his discussion of the Mohegan case, P.G. McHugh argues that before the nineteenth century the Crown viewed its imperium as resting on Native consent, so that after treaties had been signed (or even after a conquest) it continued to recognize “their political integrity and customary authority within their own affairs.” McHugh, , Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford: Oxford University Press, 2004), 102CrossRefGoogle Scholar. The Crown's stance toward the Mohegans might also have been influenced by Chief Justice Holt's 1693 decision in Blankard v. Galdy (English Reports, Vol. 90, 1089) which held that the laws of conquered peoples continue in force after a conquest by the Crown. Modern scholars and jurists have used this case (as well as others, including the Mohegans' dispute with Connecticut) as the basis for a common law doctrine of the continuity of indigenous laws and title following the assertion of Crown sovereignty. On this doctrine, see Walters, “Mohegan Indians v. Connecticut,” 790–91.

63. On the Crown's attempts to revoke the charters of the private colonies, see Steele, Ian K., The Politics of Colonial Policy: The Board of Trade in Colonial Administration, 1696–1720 (Oxford: Clarendon Press, 1968), 6081Google Scholar.

64. In an important article, Eric Hinderaker argues that the British in the early eighteenth century began to recognize Native American rulers (and therefore their polities) as partners in the imperial project, whereas they “had previously tended to regard Indians as natural men living in weak, stateless societies.” See Hinderaker, , “The ‘Four Indian Kings’ and the Imaginative Construction of the First British Empire,” The William and Mary Quarterly 53 (1996): 487526 (quote at 488)CrossRefGoogle Scholar.

65. For the Mohegans' role in King Williams' War and Queen Anne's War, see Oberg, Uncas, 206.

66. On Dudley's enmity toward the private colonies, see Kellogg, American Colonial Charter, 301–2.

67. Kellogg, American Colonial Charter, 303. On Dudley's complaints against Connecticut for—among other things—its treatment of the Mohegans, see CSPC, No, 69. Volume 23 (1706–1708), 29–32.

68. The colony also forbade individual colonists from giving testimony before the commission.

69. The Governor and Company, 32–33. The colony also accused Dudley and the other commissioners of having an interest in the land in question. On this point, see Dunn, Richard S., Puritans and Yankees: The Winthrop Dynasty of New England, 1630–1717 (Princeton: Princeton University Press, 1962), 340CrossRefGoogle Scholar.

70. The Governor and Company, 29, 27.

71. Ibid., 28.

72. Ibid., 29.

73. Ibid., 27.

74. Ibid., 29.

75. Ibid., 66–67.

76. Ibid., 153–57.

77. Gary S. de Krey, “Ashurst, Sir Henry, first Baronet (1645–1711),” Oxford Dictionary of National Biography. http://www.oxforddnb.com/view/article/74440 (March 31, 2010).

78. Neither Ashurst nor William Smith (Connecticut's lawyer before the 1743 commission) says whether the Pequots were conquered in a just war. But the legal brief the colony prepared in advance of the final Privy Council hearing in 1770 claimed that the English settlers “conquered the Pequots in a just War.” The Case of the Respondents the Landholders. To be heard before the Right Honourable the Lords of the Privy Council (n.p., 1770), 1. For the Puritan invocation of just war theory against the Pequots, see James Muldoon, “Discovery, Grant, Charter, Conquest or Purchase: John Adams on the Legal Basis for English Possession of North America,” in The Many Legalities of Early America, 43.

79. The Governor and Company, 153–54.

80. Ibid.

81. Ibid., 154.

82. Ibid., 154–55.

83. Ibid., 155. It is likely that Ashurst is referring to the deed of 1640.

84. Ibid., 154.

85. For the Queen's order-in-council granting a commission of review, see CSPC, No, 368. Volume 23 (1706–1708), 150–151. The stages of Connecticut's appeal can be followed in APC. Volume II, 460–61. On Ashurst's role in getting the ruling on costs reversed, see Washburne, George, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684–1776 (New York: Longmans, Green and Co., 1923), 103Google Scholar; and Sosin, English America, 181. On the 1706 appeal, see also Smith, Appeals to the Privy Council, 427.

86. “Report of the Committee for hearing of Appeals from the Plantations touching ye Mohegan Indians Lands” (May 21, 1706). PC 2/81, p. 204–205. One of the members of the appellate committee of the Privy Council was Chief Justice Holt of the King's Bench. Holt was the judge in Blankard v. Galdy (see note 62 above) where he held that the laws of conquered peoples survive the conquest. It is possible that the committee's decision that the Mohegans were a nation was influenced by Holt's earlier ruling. On Holt, see Paul D. Halliday, “Holt, Sir John (1642–1710),” Oxford Dictionary of National Biography www.oxforddnb.com/view/article/13611 (September 15, 2010).

87. CSPC, No, 1422. Volume 22 (1704–1705), 659–60.

88. From Oweneco's letter cited in note 51 above.

89. Alhough forbidden by the colony from appearing before the Dudley commission, the settlers on the disputed territory echoed Ashurst's arguments, claiming they did “improve the lands belonging to the Mohegan Indians, formerly reserved to the said Indians in the tract of their hunting ground.” The Governor and Company, 64.

90. Conroy, “The Defense of Indian Land Rights,” 404.

91. A copy of Mason's grant is in Talcott, Mary Kingsbury, ed., Collections of the Connecticut Historical Society. Volume V (Hartford: Connecticut Historical Society, 1896), 123–25Google Scholar.

92. St. Jean, “Inventing Guardianship,” 385.

93. De Forest, History, 313, provides details of these sales and argues that they angered members of the tribe.

94. The Governor and Company, 187.

95. Several documents pertaining to the commission are collected in The Governor and Company, 189–95. See also Den Ouden, Beyond Conquest, 117.

96. The Governor and Company, 194.

97. For Mason's petition, see Talcott, ed., Collections of the Connecticut Historical Society. Volume V, 384–90; and the discussion in De Forest, History, 319–21.

98. On the struggle over the sachemship, see Den Ouden, Beyond Conquest, 130–35; De Forest, History, 321–23; and Oberg, Uncas, 210.

99. For Mahomet's petition to the Crown, see APC. Volume III, 531. On his journey to London, see Vaughan, Alden, Transatlantic Encounters: American Indians in Britain, 1500–1776 (New York: Cambridge University Press, 2006), 162–63Google Scholar.

100. For Shirley's tenure as governor, see Schutz, John A., William Shirley: King's Govenor of Massachusetts (Chapel Hill: The University of North Carolina Press, 1961)Google Scholar. For Bollan's role in cracking down on smuggling in Massachusetts via the use of Admiralty courts, see Conroy, “The Defence of Indian Land Rights,” 405–6. On his growing disaffection from the Crown in the 1760s and 1770s, see Meyerson, Joel D., “The Private Revolution of William Bollan,” The New England Quarterly 41 (1968): 536–50CrossRefGoogle Scholar.

101. De Forest, History, 323–24.

102. For their complaint, see CSPC, No, 508. Volume 44 (1738), 241–45 (quote at 243).

103. CSPC, No, 330. Volume 45 (1739), 165.

104. The Masons' petition is in Talcott, ed., Collections of the Connecticut Historical Society. Volume V, 139–59 (quote at 146).

105. For the Mohegans' petition, see Talcott, ed., Collections of the Connecticut Historical Society. Volume V, 159–63. It was signed by over fifty members of the tribe, all of whom left their marks.

106. APC. Volume III, 536.

107. For the text of the 1743 commission, see The Governor and Company, 5–8.

108. The original commission named Archibald Kennedy, James De Lancey, Philip Cortlandt, Henry Lane, and Daniel Horsmanden. However, when the commissioners met in the summer of 1743, Archibald Kennedy, Henry Lane, and James De Lancey were not in attendance. They were replaced by Cadwallader Colden, John Rodman, and Robert Hunter Morris. For the original commission and the contrasting list of commissioners who signed the final verdict, see The Governor and Company, 3 and 143–44.

109. Although Horsmanden and Cortlandt had previously supported the Mohegans, Robert Hunter Morris was a member of the East Jersey Board of Proprietors in whose service he had vociferously opposed the claims of settlers who had purchased their land from Indians. For Morris's denial of Native title as a basis for English property claims, see McConville, Brendan, These Daring Disturbers of the Public Peace: The Struggle for Property and Power in Early New Jersey (Ithaca: Cornell University Press, 1999), 166Google Scholar. Like Horsmanden, Colden had been involved in land speculation (having served as surveyor-general of New York), but was also a forceful advocate of fairer dealings with the Iroquois (whom he saw as vital allies of the English). For Colden's time as surveyor-general, see Keys, Alice M., Cadwallader Colden: A Representative Eighteenth Century Official (New York: Columbia University Press, 1906), 27105Google Scholar. I have been unable to identify John Rodman.

110. An opponent of Governor Cosby, Smith was involved in the Zenger controversy, and also clashed with the governor over equity jurisdiction in New York. On which, see Mr. Smith's Opinion Humbly Offered to the General Assembly of the Colony of New-York (New York, 1734)Google Scholar. Cosby had used equity to try to vacate the Oblong patent (a large tract of land that Connecticut had ceded to New York). Smith was among the patentees, while Colden served as their surveyor and advisor. Horsmanden represented the English patentees whose claims conflicted with those of Smith and Colden. See Katz, Stanley, Newcastle's New York: Anglo-American Politics, 1732–1753 (Cambridge: The Belknap Press of Harvard University Press, 1968), 8081CrossRefGoogle Scholar; and Keys, Cadwallader Colden, 40–41, 121–22.

111. For Smith's attempts to have the court recognize Ben Uncas, see The Governor and Company, 69–71.

112. Ibid., 77.

113. Ibid. Smith is referring to the deed between Uncas and the fledgling colony in 1640, the validity of which Bollan contested before the 1743 commission.

114. The Governor and Company, 78.

115. Ibid.

116. Ibid.

117. Ibid., 79.

118. Ibid.

119. Ibid., 85.

120. Ibid., 80–81.

121. Ibid.

122. I have been influenced by David Conroy's account of Bollan's role in the case, especially his claim that Bollan adopted an indigenous perspective before the 1743 commission. However, I disagree with his assumption that Bollan was acting for the Masons and not the Mohegans. Although we appear to have no record of whom Bollan consulted with (or was paid by), his forceful defense of the Mohegans is closer in substance to the position of the tribe (expressed in Oweneco's 1704 letter, as well as in their petitions to the Crown in the 1730s) than to the less robust claims of the Masons (which held that the tribe were subjects of the Crown rather than allies). Conroy, “The Defense of Indian Land Rights.”

123. Ibid., 87.

124. Ibid., 88.

125. Ibid., 91.

126. Ibid., 91–92.

127. Ibid., 92.

128. Ibid., 91.

129. Ibid., 95.

130. Ibid., 93.

131. Ibid., 90.

132. Ibid., 91–92.

133. Ibid., 124, 132.

134. Ibid., 124.

135. Ibid.

136. Ibid., 126–27. David Conroy suggests that Horsmanden's arguments “may have been politically motivated” as he was a speculator in Native American land. However, speculators in the eighteenth century usually contended that the Native Americans had property rights that could be transferred to them, but not the kind of sovereignty that Horsmanden insisted that the Mohegans had. See Conroy, “Defence of Indian Land Rights,” 420, f.n., 38. Given his impassioned defense of the Mohegans' rights, it is more than a little ironic that Horsmanden was chiefly responsible for unfairly prosecuting slaves in New York who were accused of a conspiracy to burn the city down. On this, see Lepore, Jill, New York Burning: Liberty, Slavery and Conspiracy in Eighteenth-Century Manhattan (New York: Alfred A. Knopf, 2005)Google Scholar.

137. On the dispute between Horsmanden and Colden over the commission's jurisdiction, see Smith, Appeals to the Privy Council, 434–35.

138. The Governor and Company, 127–28. Colden took a different view of Native American sovereignty in his celebrated account of the Iroquois confederacy, arguing that “Each Nation is an absolute Republick by its self, govern'd in all Publick Affairs of War and Peace by the Sachems . . .” Colden, History of the Five Indians (1727), xv. This discrepancy could have resulted from the fact that the Mohegans were living on what was in effect a reservation within the boundaries of Connecticut, whereas the Iroquois were still living on their own territory as a free people. On Colden's use of the word “nation” (as opposed to “tribe”) and its relationship to an emerging sense of the importance of the Iroquois alliance among royal officials in the eighteenth century, see Hinderaker, Eric, The Two Hendricks: Unraveling a Mohawk Mystery (Cambridge; Harvard University Press, 2010), 143–45Google Scholar.

139. The Governor and Company, 128.

140. Ibid., 126. Walters cautions against the claim (advanced by Smith in his Appeals to the Privy Council) that Horsmanden's arguments about the Mohegans' sovereignty represented the views of all of the commissioners. Rather, Walters thinks that it is more likely that they defended their jurisdiction over the tenants' lands on the grounds that without it they would be unable to provide any remedy to the Mohegans. Walters, “Mohegan Indians v. Connecticut,” 821–22.

141. The Governor and Company, 138. Although the commissioners accepted the validity of the deed to the Mohegan lands that Uncas had given the embryonic colony in 1640, the Mohegans and the Masons denied its provenance, claiming that it had only come to light in the 1730s.

142. The Governor and Company, 138.

143. Ibid., 139.

144. Ibid.

145. Ibid.

146. Ibid., 140.

147. This may explain why some scholars claim that the 1743 commission decided in favor of the Mohegans on the grounds that they were a sovereign nation, when in fact only Horsmanden made such a forceful claim. Also, such a claim ignores the fact that a (narrow) majority of the commissioners ruled that the Mohegans did not have a right to their traditional territories (apart for the land that Connecticut had set aside for them). See, for example, Tully, “Aboriginal Property and Western Theory,” 171; and Carole Pateman, “The Settler Contract,” in Contract and Domination, eds. Carole Pateman and Charles Mills (Cambridge: Polity Press, 2007), 56–57.

148. The Governor and Company, 142.

149. Ibid.

150. Ibid.

151. Ibid., 141.

152. Ibid., 281.

153. On July 23, 1746, eighty-six Mohegans appealed the commission's verdict. Samuel Mason lived in London for many years seeking to have the 1743 decision overturned. For the Mohegans' appeal to the Privy Council and Samuel Mason's attempts to get Crown funding to pursue the case, see APC. Volume III, 537–38.

154. Or what Lisa Ford, in a comparative study of Georgia and New South Wales, has recently called “perfect settler sovereignty.” Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge: Harvard University Press, 2010), 183–203, and passim. For a discussion of the “quasi-sovereign powers of chartered companies” in the British empire, see Gould, Eliga H., “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772,” The William and Mary Quarterly LX (2003): 499502Google Scholar (quote at 502). Gould sees the “considerable degree of self-government enjoyed by the colonists” as resting on “canon law and the law of nations” which both held that “settlers capable of establishing regular government and systems of law had an unambiguous right to occupy underdeveloped land” (quotes at 500, 499). However, as the Mohegan case shows, royal officials did not always share this interpretation of Native status; and even Connecticut drew on arguments from conquest and purchase rather than relying on the fact that the Mohegans had not cultivated the land (and when the colony's lawyers made arguments from improvement, they did so to strengthen the settlers' claim more than to deny the tribes').

155. As Nancy Shoemaker has recently argued, Native Americans in eighteenth-century North America did have a concept of territorial sovereignty much like that of the English. That is, they understood themselves to have the ability to control their territory collectively, even though within their sovereign boundaries they may have used the land in a more communal fashion than the English system of freehold property. See Shoemaker, , A Strange Likeness: Becoming Red and White in Eighteenth-Century North America (New York: Oxford University Press, 2004), 17CrossRefGoogle Scholar.

156. Although the majority of the commissioners in 1743 (Colden, Cortlandt, and Rodman) ruled that the 1681 treaty was not binding in their final judgment, all but Colden had also upheld the interim ruling against the tenants in which Horsmanden had argued that the tribe was a sovereign polity capable of making war and peace.

157. Paul McHugh argues that in the eighteenth century the Crown alternated between classifying the Native Americans as either “independent or under protection,” but that despite the “slipperiness” of these categories, Crown officials “recognized the viability and continuance” of the Natives' “customary political forms.” McHugh, Aboriginal Societies, 103. James Tully, however, contends that the Crown's policy toward Native Americans unequivocally embraced their juridical equality. According to Tully, the Crown recognized “the Aboriginal First Nations as a mirror image of itself: as equal in status and to be dealt with on a nation-to-nation basis.” See Tully “Aboriginal Property and Western Theory,” 170. The evidence in the Mohegan case supports McHugh's interpretation of Crown policy.

158. In a recent historiographical article, Gregory Dowd, himself a prominent proponent of the new Indian history, offers a summary of the current consensus. According to Dowd, “European nation-states” only “rarely” conceded that “Indians possessed dominium or, to use the modern term, sovereignty.” Dowd adds that, unlike the Spanish, the French and English “avoided justifying their sovereignty with arguments from just conquest and instead denied Indian sovereignty in the first place on the putative grounds that the Indians failed to improve the land (terra nullius).” Dowd, “Wag the Imperial Dog: Indians and Overseas Empires in North America, 1650–1776,” in A Companion to American Indian History, eds. Deloria, Philip J. and Salisbury, Neal (Oxford: Blackwell Publishing, 2004), 4667CrossRefGoogle Scholar. Examples of this viewpoint could be multiplied. In addition to Dowd and the literature discussed in note 9 above, see Shoemaker, A Strange Likeness, 100 (“Indians were outside the British nation and, as peoples deemed barbaric, the laws of nations then being articulated by European political philosophers did not apply to them”).

159. For an argument about the centrality of conquest and cession (and therefore the recognition of indigenous title to land pre-conquest) in eighteenth-century English debates about empire, see Borch, Merete, “Rethinking the Origins of Terra Nullius,” Australian Historical Studies 32 (2001): 222–39CrossRefGoogle Scholar.

160. Although not as widely studied as the argument from improvement, the Roman law doctrine of prescription (usucapio) was an important part of both European and English justifications for empire. See Pagden, Anthony, Lords of All the World: Ideologies of Empire in Spain, Britain and France, c. 1500–1800 (New Haven: Yale University Press, 1995), 8991Google Scholar; Pagden, “Struggle for Legitimacy,” 50; and, most fully, Benton and Straumann, “Acquiring Empire by Law,” 14, 16, and passim. In an important recent study, Ken MacMillan has argued for the importance of the Roman law insistence on effective occupation in justifying English territorial claims against other European empires. MacMillan, , Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (New York: Cambridge University Press, 2006)Google Scholar.

161. This calls into question the claim of David Armitage that Lockean arguments from labor and improvement (what he calls “the agriculturalist argument”) replaced conquest as a justification for dispossession in the British world. See note 11 above. Indeed, international lawyers still recognized a right of conquest in the early twentieth century. See Korman, Sharon, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford: Clarendon Press, 1996), 78Google Scholar.

162. Benton and Straumann, “Acquiring Empire by Law,” 31. My reading of the range of legal arguments in the Mohegan case has been influenced by this important article.

163. On the ways that English law in New England was “a flexible discourse,” one which “Indians or their advocates” could use “to right old wrongs or to protect resources,” see Plane, Ann Marie, “Liberator or Oppressor? Law, Colonialism, and New England's Indigenous Peoples,” Connecticut History 43 (2004): 163–70Google Scholar (quote at 165).

164. On which, see Vaughan, Transatlantic Encounters, passim.

165. On the dissolution of the alliance with the Iroquois and the development of a more centralized Indian policy, see Shannon, Timothy J., Indians and Colonists at the Crossroads of Empire: The Albany Congress of 1754 (Ithaca: Cornell University Press, 2000)Google Scholar.

166. According to John Borrows, the Proclamation's claim that the Indians were under its ultimate sovereignty was challenged at a treaty council at Niagara in 1764 where the Natives insisted that they were allies of the Crown and had what was in effect a nation-to-nation relationship with Britain. Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, ed. Asch, Michael (Vancouver: U.B.C. Press, 1997), 155–72Google Scholar. For an argument that the Royal Proclamation “effectively denied native sovereignty,” see Dowd, Gregory, War Under Heaven: Pontiac, the Indian Nations, & the British Empire (Baltimore: The Johns Hopkins University Press, 2002), 177Google Scholar.

167. On the strength of the settler opposition to the Crown's desire to protect Native American rights in the 1760s and 1770s, see Richter, Daniel, “Native Americans, the Plan of 1764, and a British Empire that Never Was,” in Cultures and Identities in Colonial British America, eds. Tully, Alan and Olwell, Robert (Baltimore: The Johns Hopkins University Press, 2006), 269–92Google Scholar; and Griffin, Patrick, American Leviathan: Empire, Nation, and Revolutionary Frontier (New York: Hill and Wang, 2007), 1993Google Scholar.

168. Undated Manuscript. Mohegan Indian Case. William Samuel Johnson Diaries, v.p., 1765–1802, Columbia University Special Collections.

169. As Edward Countryman has argued, the eighteenth-century empire was akin to a European composite monarchy, a federation of many peoples under one Crown. As such, it allowed for a more pluralistic legal world, including a recognition of Native American rights, than the republican federation based on popular sovereignty and western expansion, which emerged from the Revolution. See Countryman, , “Indians, the Colonial Order, and the Social Significance of the American Revolution,” The William and Mary Quarterly 53 (1996): 342–62CrossRefGoogle Scholar.

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