Indian title to lands lying within the territorial limits of a State, though entitled to be respected by all Courts until it be legitimately extinguished, was not such as to be absolutely repugnant to a sesin in fee on the part of the Government within whose jurisdiction the lands are situated." He adds, however, that though this was the language of a majority of the Court, yet it was a "mere naked declaration, without any discussion or reasoning by the Court in support of it; and Judge Johnson, in the separate opinion which he delivered, did not concur in the doctrine, but held that the Indian nations were absolute proprietors of the soil, and that practically, and in cases unaffected by particular treaties, the restrictions upon the right of soil in the Indians amounted only to an exclusion of all competitors from the market, and a pre-emptive right to acquire a fee-simple by purchase when the proprietors should be pleased to sell." In the subsequent case of Johnson v. McIntosh, 8 Wheaton, 543, this large view of the title of the Indians was somewhat curtailed, and in the language of Marshall, C.J., their right was defined to be that of occupancy only, and subject to the absolute title of the state to extinguish it. In the words of Kent, the Indians enjoyed no higher title than that founded on simple occupancy, and were incompetent to transfer their title to any other power than the Government which claimed the jurisdiction of their territory by right of discovery. In a still later case (l), Worcester v. State of Georgia, 6 Peters, U.S., 515, arising out of certain statutes of that State of 1828-29-30, the Supreme Court decided that the right to the soil claimed by European governments, as a necessary consequence of the right of discovery and assumption of territorial jurisdiction, was only deemed such in reference to the whites, amounting, so far as the Indians were concerned, only to an exclusive right to purchase such lands as they were willing to sell; the various

(1) See also Mitchell v. United States, 9 Peters, 711.

royal grants and charters asserted a title to the country against Europeans only, and were blank paper as regards the Indians. Chalmers (m) states that the practice of the European world had constituted a law of nations which sternly disregarded the possession of the aborigines, because they had not been admitted into the society of nations. This principle doubtless influenced the naïve "Councell's opinion" (n) given, about 1675, by six well-known counsel regarding lands in New York, when they found, in answer to the second question submitted to them—

Though it hath been and still is ye usuall practice of all proprietors to give their Indians some recompence for their land, and seem to purchase it of them, yet yt is not done for want of sufficient title from ye King or Prince who hath ye right of discovery, but out of prudence and Christian charity, least otherwise the Indians might have destroyed ye first planters (who are usually too few to defend themselves) or refuse all commerce and conversation with ye planters, and thereby all hopes of converting them to ye Christian faith would be lost.

Nevertheless, as Kent points out, "it is certain in point of fact that the colonists were not satisfied (with these loose opinions or latitudinary doctrines), or did not deem it expedient to settle the country without the consent of the aborigines under the sanction of the civil authorities. The pretensions of patents were not relied upon, and the prior Indian right to the soil was generally, if not uniformly, recognized and respected by the New England Puritans." Finally, the same authority states that the Government of the United States has never insisted upon any other claim to the Indian lands than the right of pre-emption upon fair terms.

In Canada the Government has proceeded upon similar principles, though Chancellor Boyd, in a late case (0), places the

(m) Political Annals, 676.

(n) Documents relating to the Colonial History of the State of New York, vol. xiii. p. 486. Also quoted at length in Regina v. St. Catherine's Milling Co., 10 Ont. 206.

(o) Regina v. St. Catherine's Milling Co., at p. 230, supra.

rights of the Indian on a much lower plane, and states that he has "no claim except upon the bounty and benevolence of the Crown," and he quotes with approval the extract given from "Councell's Opinions." Nevertheless, he admits (p) that a right of occupancy attached to the Indians in their tribal character, though they were unable to transfer it to any stranger, and it was susceptible of extinguishment at the hands of the Crown alone, "a power which, as a rule, was exercised only on just and equitable terms." On appeal, one of the judges, Burton, entertained the same views as the Chancellor, but the other three took a broader view. Hagarty, C.J., stated that "the Indian tribes were sparsely scattered over that region (Western Ontario) and the rest of the northern continent to the Rocky Mountains. No surrender of Indian rights had been made, and, according to the settled practice of the United Provinces of Canada, evidenced and sanctioned by repeated statutes, no attempt appears to have been made to grant titles or encourage settlement so long as the Indian claim was unextinguished." Patterson, J., p. 169, quoted with approval the rule as laid down in Story's Commentaries, on the Constitution of the United States, 1833 sec. 6, to the effect that the aborigines "were admitted to be rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion." When this case came before the Supreme Court of Canada (9), the findings of the courts below were upheld, and the title of the Indians put on the ground assigned it by Chief Justice Hagarty, not on that much lower one favoured by Chancellor Boyd. Chief Justice Sir W. J. Ritchie (with whom Fournier, J., concurred), stated "that the Indians possessed a right of occupancy, the Crown possessing the legal title, subject to that occupancy, and the absolute exclusive right to extinguish the Indian title either by conquest or by purchase.'

(p) Ibid. p. 209.

(q) 13 S. C. R. 577.

Mr. Justice, now Chief Justice Sir Henry, Strong quoted with approval the expressions of Chancellor Kent above referred to, and held that the Crown recognized an usufructuary title in the Indians to all unsurrendered lands, which, though not perhaps susceptible of any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the Crown itself, in whom the title was, in accordance with the English law of real property, considered as vested." The learned judge also quotes with approval the language of Chancellor Kent on the 383rd, 385th, and 386th pages of his third volume, and in particular his remarks on Mitchell v. United States, to the effect that that "possession was considered with reference to Indian habits and modes of life, and the hunting-grounds of the tribes were as much in their actual occupation as the cleared fields of the whites, and this was the tenure of Indian lands by the laws of all the colonies."

Gwynne, J., went further, and held that the Indians had an estate, title, and interest in their hunting-grounds, which could not be divested from them nor extinguished except by cession made in the most solemn manner to the Crown.

Henry, J., was of opinion that the right of the Indians certainly was not a fee, but stated that the Crown recognized such a right in them that they were not required to give up their lands without some compensation. Taschereau, J., quoted with approval the principle that while European nations respected the rights (claims) of the natives as occupants, yet they asserted the ultimate dominion and title to the soil to be in themselves.

It is a matter of regret that the Judicial Committee of the Privy Council, when the matter came before it by way of appeal (r) from the Supreme Court of Canada, did “not con

(r) 14 Appeal Ca. at pp. 55, 58.

sider it necessary to express any opinion" upon this interesting point, but intimated that though there had been all along vested in the Crown a substantial and paramount estate, yet it did not become a plenum dominum until the Indian title was "surrendered, or otherwise extinguished." The title was, however, distinctly stated not to be a fee simple, but "a mere burden" on the title of the Crown.

It was because the Company had not a plenum dominum to the land more than two miles back from the Red and Assiniboine rivers, save at its forts, that it granted no lots lying outside this belt to settlers. When the Transfer to Canada took place, it has been noticed (s) that the Company was careful to make provision for the extinguishment of this Indian title, for the eleventh of the "terms and conditions" was that "any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the Company shall be relieved of all responsibility in respect of them."

Canada at once assumed the obligation, and carried it out faithfully, for section 31 of the Manitoba Act provided for "the extinguishment of the Indian title to the lands in the province" by appropriating one million four hundred thousand acres of the ungranted lands, vested by that Act in the Government of Canada, for the benefit of the children of the half-breed heads of families residing in Manitoba at the time of the Transfer to Canada, July 15, 1870, the same to be selected in lots or tracts in such parts of the province as the Lieut.-Governor of Manitoba might deem expedient, and to be granted in the mode and under the conditions to be prescribed by the Governor-General in Council.

One not familiar with the peculiarities of the people known in Manitoba as half-breeds, or metis, would naturally

(s) Supra, p. 20,