In re Narragansett Indians

• Decision Date: 24 February 1898
• Citation: In re Narragansett Indians, 40 A. 347, 20 R.I. 715 (R.I. 1898)
• Parties: In re NARRAGANSETT INDIANS.
• Court: Rhode Island Supreme Court

40 A. 347

20 R.I. 715

In re NARRAGANSETT INDIANS.

Supreme Court of Rhode Island.

Feb. 24, 1898.

To the Honorable the Senate of the State of Rhode Island and Providence Plantations: I have the honor to inclose the opinion of the justices of the supreme court upon the questions put to us by your honorable body as to chapter 800 of the Public Laws of Rhode Island, its constitutionality, etc. The last two paragraphs contain the conclusions.

Very respectfully,

CHARLES MATTESON,

Chief Justice of the Supreme Court.

February 24, 1898.

To the Honorable the Senate of the State of Rhode Island and Providence Plantations: We have received from your honorable body a resolution requesting our opinion on the following questions, to wit: (1) Are the provisions of chapter 800 of the rublic Laws of Rhode Island, passed March 31, 1880, constitutional?

(2) Do the quitclaim deeds, executed and delivered by the council of the Narragansett tribe of Indians, or by a majority of them, of their common tribal lands, and of their tribal rights and claims, to commissioners, under and in accordance with the provisions of section 2 of chapter 800 of the Public Laws of Rhode Island, passed March 31, 1880, vest in the state of Rhode Island the right, title, interest, and property of said tribe in and to the premises so quitclaimed and deeded as aforesaid?

(3) Has the state of Rhode Island acquired, or can said state acquire, any valid title or interest in the tribal lands of the Narragansett tribe of Indians by any proceedings under the provisions of chapter 800 of the Public Laws of Rhode Island, passed March 31, 1880?

(4) Are the tribal relations, and tribal authority of the Narragansett tribe of Indians, abolished by the provisions of chapter 800 of the Public Laws of Rhode Island, passed March 31, 1880?

(5) Have persons who have taken conveyances from the state under Act 1880, c. 800, acquired a valid title to lands conveyed?

To answer these questions adequately, with the reasons upon which our opinion is based, requires an examination of the relations existing between this state, including the royal colony preceding it, and the Narragansett tribe of Indians, from the earliest settlement of the colony down to the passage of the act in question. It will be necessary to consider what the tenure of Indian land was, not only according to the law of England, which we inherited, but also as between the Indians themselves, as we find constant reference, even down to 1880, as well by the Narragansett as by our own general assembly, to the Narragansett tenure of land according to ancient usage and tradition; hence it will be needful to inquire into the early manners and customs of the Narragansetts to ascertain how they themselves dealt with their land. In tracing the title of the Narragansett lands during the 244 years extending from 1630, the date of the settlement of the colony, to 1880, the date of the passage of the act, two considerations must receive especial attention; the first being the effect of a deed containing an exception or reservation of certain territory embracing the land referred to in said chapter 800 as tribal lands, dated March 28, 1709, and made by Ninigret, the sachem of the Narragansetts, to the colony of Rhode Island. A glance at some of the events preceding the making of that deed will be necessary to a proper understanding of the circumstances under which it was made. The second consideration is, what effect, if any, did Rhode Island's adoption of the federal constitution, in 1790, have upon the relations of the state with the Narragansett tribe?

The first reference to the Narragansetts that we glean from history is early in July, 1621, the year after the Pilgrims landed on Plymouth Rock, when a returning scouting party reported to the Plymouth Colony the existence of the Narragansetts, a people strong, and many in numbers, living compactly together, that had not at all been touched by the wasting pestilence which had devastated the Indians of New England a few years before the arrival of the English, and located on the other side of the great bay from Massasoit and his tribe of Wampanoags. Roger Williams says in his Key that the Narragansetts were the chief people in the land. Gov. Hutchinson states that they were the most numerous of all the tribes between Boston and the Hudson river. Brinley's assertion is that they formerly numbered 30,000; while Callender declares that at the beginning of King Philip's war, in the spring of 1675, they were reputed to have 4,000 fighting men. This latter writer, in his Century Discourse delivered at Newport In 1738, after describing the Great Swamp Fight between the troops of the United Colonies and the Narragansetts in December, 1675, which he designates as "the greatest action ever performed by the New English colonies against the Indians, if we regard either the numbers of men on each side, or the consequences of the action," says: "The Indians were soon pursued with famine and sickness, so that after they submitted, the next year, they were never formidable again." Then he proceeds as follows: "These Narragansetts do now, in a manner, cease to be a people, the few, if any, remaining in the colony, being either scattered about where the English will employ them, or sheltered under the successors of Ninigret, a sachem that refused to join in the war, and so has preserved his lands to his posterity; and there are a few Indians now living round him, on his lands, or belonging to his tribe." The people in Rhode Island, in our day, calling themselves Narragansetts, are, properly speaking, not Narragansetts at all, but, at best, only a decayed remnant of the Niantlcs, a tribe tributary to the Narragansetts, with whom the survivors of the latter took refuge after the Great Swamp Fight; the less celebrated tribe adopting and being known thenceforward by the more famous name of their once powerful neighbors, the Narragansetts.

The government, language, manners, and customs of the Indians on the New England sea coast, were very similar. Roger Williams, in his Key, writing solely of the Narragansetts, says: "Their government is monarchicall. * * * Beside their general subjection to the highest sachims, to whom they carry presents, they have also particular Protectors, under sachims, to whom they also carry presents, and upon any Injury received and complaint made, these protectors will revenge it. * * * The sachims, although they have an absolute monarchic over the people, yet they will not conclude of ought that concernes all, either lawes, or subsidies, or warres, unto which the people are averse, and by gentle perswasion cannot be brought." Gov. Winslow of Plymouth Colony, in writing about the Indians of Southern New England (Morton's N. E. Memorial, Ap. 489). tells us: "Their sachems cannot be all called kings, but only some few of them, to whom the rest resort for protection and pay homage unto them; neither may they war without their knowledge and approbation; yet to be commanded by the greater, as occasion seemeth. Of this sort is Massasoit, our friend, and Canonicus of Narragansett, our supposed enemy. Every sachem taketh care of the widow and fatherless, also for such as are aged and any way maimed, if their friends be dead, or not able to provide for them. * * * This government is successive and not by choice; If the father die before the son or daughter be of age, then the child is committed to the protection and tuition of some one amongst them, who ruleth in his stead till he be of age, but when that is I know not. Every sachem knoweth how far the bounds and limits of his own country extendeth, and that is his own proper inheritance; out of that, if any of his men desire land to set their corn, he giveth them as much as they can use, and sets them in their bounds. * * * As for their language, it is very copious, large, and difficult, as yet we cannot attain to any great measure thereof; but can understand them, and explain ourselves to their understanding, by the help of those that daily converse with us. And though there be difference in an hundred miles distance of place, both in language and manners, yet not so much but that they very well understand each other." Capt. Gookin, another contemporary of Roger Williams, in his Historical Collections of the Indians in New England (1 Mass. Hist. Soc. Col. Ser. 1, pp. 141, 154), writes: "Their government is generally monarchical, their chief sachem or sagamore's will being their law; but yet the sachem hath some chief men that he consults with as his special counselors. Among some of the Indians their government is mixed, partly monarchical, and partly aristocratical; their sagamore doing not any weighty matter without the consent of his great men, or petty sagamores. Their sachems have not their men in such subjection, but that very frequently their men will leave them upon distaste or harsh dealing, and go and live under other sachems that can protect them: so that their princes endeavour to carry it obligingly and lovingly unto their people, lest they should desert them, and thereby their strength, power, and tribute would be diminished."

Until the discovery of America by Europeans, the Indians were in the sole and undisputed possession of the country, and there was no one to question their title. The legal effect of the coming of the white man is most luminously set forth in an opinion of the supreme court of the United States, delivered in 1823 by Chief Justice Marshall in Johnson v. Mcintosh, 8 Wheat. 543, 572, et post. The decision of the court was that a title to lands, under grant to private individuals, made by Indian tribes or nations northwest of the river Ohio, in 1773 and 1775, cannot be recognized in the courts of the United States. The court, inter alia, uses this language: "On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much...