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Title - Native American Deeds
link to introduction link to narrative link to deeds llink to maps link to culture link to tribes
Introduction Narrative
   
  INDIAN vs ENGLISH VIEWS Regarding Rights to the Land
Focus Points 3

Three Indian Landscapes
Historical Evidence in Native American Deeds Collection
Indian vs. English Views Regarding Rights to the Land
Settlement Patterns in Essex County - Three periods of Development
Indian Raids in New England & Essex County & Colonial Militia in Indian Wars
 

"Attitudes and Latitudes"

Beginning with the original charter or Royal Patent of the Massachusetts Bay Colony signed by King James in 1628 an assumption was made by the Europeans that the Native Americans were savages and had no title to the land. The Crown derived its own claim to the region from three sources: (1) Cabot’s discovery of New England in 1497-98;(2) the failure of the Native American’s to adequately subdue the soil as Genesis 1:28 required; and (3) from the King’s status – the first monarch to establish colonies there.

Claims by settlers to land in New England had two potential sources, first, they could purchase from it Indians or second, they could secure grants initially from the English Crown, later from the Mass. Bay Colony itself.  Grants tended to quickly absorb the early purchases. The distinction between ownership and sovereignty is crucial here. Whether a colony decided to purchase land from the Native People was their own choice. The colonies of Plymouth, Connecticut and Rhode Island, without Royal Charters, initially felt compelled as a matter of expediency and ethics to do so. All colonies ultimately derived their political authority from the Crown. However, when a colony opted to purchase land from the Native Americans, it did so under its own sovereignty, not the Crown. Whenever ownership rights were deeded and purchased they were immediately incorporated into “English” law, not Native American law.  By the end of the 17th century, Native American Indian lands were regarded as being entirely within English colonial jurisdiction.  For Indians to own any land at all, it first had to be granted to them by the English Crown or established colonial authority.

The Royal Patent set the bounds of the Massachusetts Bay Colony to exist between the latitudes of 40 degrees on the South and 48 degrees on the North, from sea to sea.  This understanding became far reaching, since the boundaries of the Patent stretched from three miles south of the Charles River (which is clearly depicted on Capt. John Smith’s 1614 Map of New England)(1) to three miles North of the Merrimack River (not clear how this was geographically referenced in 1628 –Perhaps by the Dorchester Men who set up a fishing station on Cape Anne). Between those lines, the Mass. Bay Colony was given the right:

“to have and to houlde, possesse and enjoy all and singular the aforesaid continents, landes, territories, islands, heridements, and precincts, seas, waters, fishings, with all and all the manner their commodities, royalties, liberties, preheminances, and proffits that should arise from thence, with all and singular their appurtanances, and every part and parcel thereof, unto said Council and their assignees for ever”.

Contemporary historians that write specifically on this subject include:
(1) William Cronon, in his work Changes in the Land (2)
(2) Frances Jennings, Invasion of America: Indians Colonialism and the Cant of Conquest.(3)
(3) Peter Leavenworth, New England Quarterly –June 1999, “The Best Title That Indians Can Claim Transferal of Pennacook/Pawtucket Land in the 17th Century.(4)

Leavenworth’s  research is particularly relevant since the Pennacook tribal territory is along the lower Merrimack Valley and his focus is given to the Native American kinship of early tribes and family bands living there. He adds a new dimension of calming tension in Native American land deals with emphasis  on “consent” in the deal. Whether real or perceived, “consent” worked well until 1650-60. By affixing the mark of the Sachem to a recorded deed, it could easily be perceived as “ real consent” in the Court of Colony Magistrates. Leavenworth reviewed over 110 land transfers in the Pennacook tribal  territory covering northeastern Mass., southern N.H. and southern Maine.

The Great Pennacook Sachem Passaconaway was inclined to dispose of surplus land in light of the declining tribal population (from various devastating illnesses)  between 1630 and 1660. He is reported to have welcomed English settlers in the region to help defend his people from the invading Mohawks of New York. (5)

Cronon takes a different perspective and gives us a better understanding of the cultural pinnacle which the resident Native American society achieved before their “sovereignty was taken” from them. He also offers a clear explanation as to why the two cultures were incompatible and how it was destined that the English would replace the original resident population. Cronon contrasts the high ecological relationship with the land held by the Native People, with the economic value of the land held as most important by the English. He concludes that the significance of the Royal Patent lies in its sweeping extent and its abstraction of rights with no concern for claims of the existing inhabitants.  The English emphasis was on the land's profits, and commodities and that the land would be bounded forever.

This underlying set of values was augmented with a set of Puritan religious beliefs that not only did the Native People not have any right to land that they did not fence and improve, but they had no right to practice whatever religious beliefs they may have had. Was this was an ironic twist in Puritan value, which, in there own case of not being tolerated in England,  forced them to their leave their homeland, or was it by design to force the Native Americans out of their homeland? 

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Native American Perspective "Usufruct Rights"

When one reads the histories of the earliest settlements in EssexCounty, focus is placed on the names of the earliest planters and dates of occupation.  Little attention is brought to the fact that a great First American Society already occupied this territory (EssexCounty) for
10,000 years or more.  These Native Americans were a mobile group who sustained themselves as hunters, gatherers and planters.  They had a moral code and a clear understanding of their territorial boundaries and property rights and privileges. The Native American society, generation after generation, returned annually to plant or hunt on the land and thereby had a basic claim to the land. (6)

It is clear that all of Essex County cities and towns have a Native American heritage with a people who enjoyed more of what Mother Nature still offers to us today, over 400 years later. The beauties of the changing seasons continue to include spawning rivers with the Spring Moon, major bird migrations twice a year, magnificent coastal and river views plus the thrill of encountering wildlife in its own habitat (such us seeing a white-tailed deer, a red fox in the Winter Moon, a wild turkey or several in the cornfield or a great blue heron wading and waiting to strike a fish. School children and others can plan hiking trips along Native American Trails (7) through the Lynn Woods, up and down Plum Island Sound, down the Pow Wow River in Amesbury or through Deer Jump Reservation in West Andover.  These were the land and water routes between Native American villages among the Pawtucket Tribes. Non-coastal residents would seasonally gravitate toward the river edges in the Spring and sandy coastal beaches in the Summer season.  Today canoeists and kayakers still come from near and far to enjoy our rivers and coastal waters. Shellfish and finfish are favorite foods and an important part of our diets just as it was for the Native People. Our uplands are still producing agricultural products from Summer berries to Fall pumpkins and squash. We have dedicated our forests to  "living by the campfire". Amidst our great technological developments, there are many similarities in the way that we use our natural resources today, as did the Native Americans 400 years ago. Using our imagination, we are connected to our Native American heritage by the landscape. We travel over historic and hallowed ground.
  

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Native American lifeways excerpted from Cronon's Changes in the Land

Native communities in Pre-Colonial Essex County instinctively exploited the seasonal diversity and practiced mobility. Their principal social organization was the village, which ranged from a small settlement of a few hundred inhabitants to extended kin networks and alliances.   Larger groups are known as “Tribes” and smaller ones are referred to as “Bands” and even smaller groups are known as “Families”.  Wherever villages expected to found the greatest food supply is where they went. So, villages were not necessarily fixed places of occupation although some places were permanent habitations for thousands of years such as Bull Brook site in Ipswich, Shattuck Farm site in Andover and the Coffin Stream site in West Newbury. 

Within a “Village” organization the chief ruler was called the “sachem” or “sagamore”.  To the English, this position was equivalent to a government head and for a ruler of Native American confederation the position was similar to a monarchy. The right to rule came primarily through inheritance, although some significant accomplishment could qualify a person to be a sagamore. Each succeeding generation was like its predecessor; its practice, manners and habits remained as its father’s had been. Although the Native Americans had a moral code of ethics, they had no written laws or revenue. Half of personal possessions of their subjects and also their persons were at the disposal of the sagamore - to whom they were loyal, obeying him or her freely. A sachem asserted authority only in consultation with other powerful individuals in the e village. Abuses were restrained generally and murder was not tolerated in the village. The sachem was his wisest men investigated the circumstances of offences. The results would determine the admonition or punishment.

What the Native Americans “owned” or more specifically, what the village gave them right to – was not the land but things that were on the land during the seasons that they were there. It was a concept of property shared by many Native people but radically different from the invading Europeans.  Native Americans adapted names for the various places of the landscape to indicate places where Native People could expect to find food to sustain them. Such names became on “oral map”, interpreted by village inhabitants, for identifying trading places, or even edges of tribal territories.

 
There are two issues involved with Indian property rights. One is individual ownership the way inhabitants of a particular village conceive of property vis-a-vis each other. The other is collective sovereignty, how everyone in a village conceived of their territory (and political community) vis-a-vis other villages.

Cronon argues a Native American village “owned” the land it inhabited and its property was expressed in the sovereignty of the sachem “ Every sachem knoweth the bounds and limits his country extendeth,” wrote Edward Winslow in the 17th century.  For all their differences, a sachem owned his territory analogous to the way a European monarch owned an entire nation; less personal real estate than as a possession of a whole people. A sachem’s land was coterminous with the area within which a village’s economic subsistence and political sanctions were most immediately expressed. In the sovereign sense, according to Roger Williams, a defender of Native American property rights  “the Natives were every exact and punctual in the bounds of their lands.”  Money meant nothing to Native Americans. 

Goods were “owned” because they were useful and if they ceased to be useful they could be given to someone else. Europeans interpreted the generosity of the “noble savage”, but the Native Americans relative indifference to the accumulation of property is better understood as a corollary to their political and economic life. (Don’t take it if you don’t need it.) Personal goods could easily y be replaced and accumulation made little sense. Gift giving was a critical lubricant in sustaining power relationships within a village.

When it came to land, however, there was less reason for gift giving or exchange. Families enjoyed the exclusive use of their planting fields, on which wigwams stood and gave appearance of “owning” such lands.  But neither the wigwams nor the planting fields were permanent possessions. Wigwams were moved every few months and planting fields were abandoned after a few years. Wigwams were moved every few months and planting fields were abandoned after a number of years. Once abandoned, the fields returned to brush until it was re-cleared by someone else and no effort was set to make permanent boundaries around it that would hold it indefinitely for a single person. What families possessed in the fields was the use of them, the crops of the woman’ s labor.

When lands were traded or exchanged in the way that Roger Williams described, what were exchanged were “USUFRUCT RIGHTS”, acknowledgments by one group that another might use an area for planting and hunting or gathering.  Such rights were for a limited period of use, as they did not include many of the privileges Europeans commonly associated with ownership: a user could not (and saw no need to) prevent other villagers from trespassing or gathering nonagricultural food on such lands, and had no conception of deriving rent from them.  Planting fields were "owned" by an Indian family to the extent it would return to their use the following year.  In this they were not radically different from other village lands; it was European rather than Indian definitions of land tenure that led the English to recognize agriculture as the only legitimate property.  The only agricultural property therefore was the planted ground of the Indian women. Hunting and gathering areas were non- agricultural thereby "vacant" and not Indian property.

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English Perspective Vacuum Domicillum

The Massachusetts Court made its theories on land ownership quite clear when it declared that:  “what lands any of the Indians, within this jurisdiction, have by possession or improvement, by subduing of the same, they have just right thereunto, according to that Gen: 1: 28 Chapt 9:1 Psa 115,16.”  This implication engrossed a great bulk of the Indian village’s territory. Confusion was easy on this point, not only because of English ideologies, but because the Indians had very flexible definitions of land tenure. Here again, the concept of usufruct rights was crucial, as different groups could be allocated different usufruct rights to the same tract of land.

Property rights, in other words, shifted with ecological use. Within four years of the founding of the Massachusetts Bay, the General Court had ordered that"no person whatsoever shall buy any land of any Indian without leave of the court". The effect was not to just restrict illegal purchases but also to address the problem of sovereignty and to limit Indian rights to sell their land the process is subordinated to the sovereignty of the Massachusetts Bay Colony. Regarding Indian land sales, at least in the beginning, it was possible for an Indian to think he was selling one thing (usufruct rights) and the English thought they were buying another.

Cronon reports that within the loosely defined powers of the Patent, the Company could make grants to the gentry and others whom had the ability to improve the land. There was little or no indication of how the land was to be allocated.  The settlers had to devise a system to distribute the land. Again the assumption was that the land was free for the taking. Colonists by the 1630’s would soon find out that the price of the land was much higher than what was recorded in the “Book of Possessions”. The investors in the Mass. Bay Colony discouraged purchasing land from the Indians. However, a letter was sent to the first governor of the Colony, (John Endicott) which stated “if any of the savages pretend inheritance to the lands in New England that representatives would endeavor to purchase their titles to avoid the least scruple of intrusion”. This position seemed to be consistent with the Puritan philosophy and moral code but there was division within the “Church” on this subject.

After the arrival of Governor Winthrop Vacuum Domicillum was preached and enacted into law. In Salem, Roger Williams claimed that land was the property of the Native People and that title could only be gained from the and not by virtue of the King's grant. For this he was quickly banished from the Colony and settled in Providence, Rhode Island.  This was the first but not the last act of Puritan intolerance. Stephen Bachelor was banished from Lynn. Anne Hutchinson was banished from Boston and joined roger Williams. Francis Wainwright was banished from Exeter. Later examples include the hanging of Quakers and subordinating or banishment of those that held different views or challenged Puritan beliefs. We see a Puritan society, which fled persecution to set up a Church – State form of government and then proceeded to persecute others based on religious reasons, including the Native Americans.

Winthrop stated that there are only two ways of owning land, one natural and one civil. Natural right to the land, in his opinion, existed "when men held the earth in common and every man was sowing and feeding where he pleased". This natural ownership had been superseded when individuals began to raise crops, keep cattle and improve the land by enclosing it. From such actions Winthrop argued, a superior form of right to land emerged, known as civil right of ownership. Winthrop used this theory as part of European ideology and convinced himself an others that for the Natives in New England, they enclose no land, neither have settled habitation, nor tame any cattle to improve land by, and have so no other than a natural right to those countries.  The land was VACUUM DOMICILLUM.   Minister John Cotton wrote "In a vacant soil, he that taketh possession of it and bestoweth culture and husbandry upon it his right it is."

This appears to be an ideology of conquest conveniently used to justify the occupation of another people land. By design, refusing to recognize the rights of property to Native American, they trivialized their ecological way of life and paved the way for destroying it.

Jennings makes his point regarding sovereignty in what he phrases the “DEED GAME.”  He points out that the conquests of Europeans over other Europeans involve a transfer of sovereignty, but did not necessarily deprive the vanquished of their property. Certainly a transfer of allegiance to the new sovereign was essential but he could restore property rights under his new laws. Further, he argues the Europeans discovered an inhabited land. Jennings suggests that before the great Winthrop Immigration Period 1630-40, there were a number of land transfers between Europeans and Native Americans especially New Amsterdam (New York), Plymouth Colony and in Maine by non-Puritans.   The Puritans had held to the “virgin vacant land” concept and therefore recognized no Native American right to the same.  Jennings leaves no doubt as to where he is coming from when he suggests that traditionalists accept Puritan doctrine as “Gospel”, especially when biblical references are made to remove any suspicion of injustice or intrusion.   He regards Puritan historical accounts as “writings by persons with interest to serve”.  He further justifies his position by stating that the English were incapable of conquering true wilderness, but highly capable of conquering other people.  What they did was not to settle a virgin land, but rather a “widowed land” reoccupied after it had been laid waste by disease and demoralization introduced by the newcomers.

Jennings also noted the significance of this is the precedence set by non- Puritans, later followed by the English, “to extinguish by persuasion or purchase, in a contract by being made thereof and signed by them (Native People) in their manner, since such contracts upon other occasions may be useful to the company”.  The “other occasions” the Dutch envisioned soon became real, when they got embroiled with the English, in the Delaware and Connecticut Valleys, and they pulled out their written deeds. Jennings is quoted often regarding the “dispossession of America”. These NA Deeds, after 1684, were also used as proof of ownership in a London Court, when King Charles II revoked the Colony’s Charter.

We have found no evidence of any of trickery or illegal negotiation techniques used in Essex County by the settlers, especially in the years before 1650. It must be remembered that after the smallpox epidemic of 1633, the resident Native American Indian population of Essex County was seriously reduced and that the Indians did not use much of the land.  Also, the sachems of Lynn and Salem (plus Masconomet and Passaconaway to the North) had been friendly to the English and during the early years had created an interdependency between.  The Native People, fearing they had wronged their gods (and seeing so much unexplained death) and fearing enemy Indians from Maine, then later from New York, were now incapable of raising sufficient warriors to defend themselves.  They did all they could to successfully maintain their livelihood and self-identity until, in the face of cultural assault, it eventually became impossible.  Then they were referred to as “settler” Indians in this area. Even the English often times referred to them as “our” Indians.  Winthrop would use the Colony’s superior position of to defend the Native People against their enemies and use the via treaties to expand the fur trade and serve as guides to expand the frontier of settlement. As "Wards" of the Colony, its seal was inscribed with a banner "Come over and help us" above a Native American. The real questions would be: " help us how?" and"help who do what?" (8)

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REFERENCES:    Focus point #3

Capt. John Smith's Map of New England 1614

William Cronon Changes in the Land Indians, Colonists and the Ecology of New EnglandFrances J

ennings, Invasion of America: Indians Colonialism and the Cant of Conquest

Peter Leavenworth, New England Quarterly –June 1999, The Best Title That Indians Can Claim Transferal of Pennacook/Pawtucket Land in the 17th Century.

Charles Edward Beals Jr. (pseudo.) Passaconaway in the White Mountains William James Sider, Boston, 1916

E. Hamilton Hurd, History of Essex  County, 1898

Ancient Indian Trails and Canoe Routes, a Map prepared by T. O'Leary, GIS Director , South Registry of Deeds, 2002

Seal of Mass.Bay Colony

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