Commentaries on American Law

Image: James Kent. Rembrandt Peale. (c. 1835) National Portrait Gallery.
Why would farmers’ claim to land supersede that of hunters and gatherers? What was Kent’s position on the sovereignty of Indian tribal nations? How did it relate to Indian or aboriginal title?
How does Joseph Story’s view of Indian sovereignty relate to Kent’s opinions on their land rights?

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James Kent (1763–1847) was a judge in the state of New York and was the first professor of law at Columbia University. Between 1826 and 1830 he authored the four-volume set of books from which this selection was excerpted. The Commentaries were a “restatement” (i.e., a summary) of current U.S. laws. Often they were the only legal books lawyers of that period possessed, and as such were incredibly influential. They earned Kent the epithet the “American Blackstone,” after William Blackstone (1723–1780), whose Commentaries on the Laws of England codified British common law.

In this selection Kent discussed the Indians’ title to the land, drawing on the decision of Supreme Court Chief Justice John Marshall (1755–1835) in Johnson v. McIntosh. In particular, he discussed the right of discovery and the concept that farmers’ claim to land superseded that of hunters and gatherers. Kent’s views may be taken to express views that were generally held among whites and guided their dealings with Native Americans.

—Jace Weaver

James Kent, Commentaries on American Law, vol. 3 (New York: O. Halsted, 1828), 308–313,

The history and grounds of the claims of the European governments and of the United States to the lands on this continent, and to the dominion over the Indian tribes, has been largely discussed, and the solidity of that claim to a qualified extent, explicitly asserted, by the courts of justice in this country. In Johnson v. McIntosh, it was stated as a historical fact that, on the discovery of this continent by the nations of Europe, the discovery was considered to have given to the government by whose subjects or authority it was made the sole right of acquiring the soil from the natives as against all other European powers. Each nation claimed the right to regulate for itself, in exclusion of all others, the relation which was to subsist between the discoverer and the Indians. That relation necessarily impaired, to a considerable degree, the rights of the original inhabitants, and an ascendency was asserted in consequence of the superior genius of the Europeans, founded on civilization and Christianity, and of their superiority in the means and in the art of war.

The European nations which respectively established colonies in America assumed the ultimate dominion to be in themselves and claimed the right to grant a title to the soil, subject only to the Indian right of occupancy. The practice of Spain, France, Holland, and England proved the very general recognition of this principle. The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil and exercise such a degree of sovereignty as circumstances required, has never been judicially questioned. The rights of the British government within the limits of the British colonies, passed to the United States by the force and effect of the act of independence, and the uniform assertion of those rights by the Crown, by the colonial governments, by the individual states, and by the Union is, no doubt, incompatible with an absolute title in the Indians. That title has been obliged to yield to the combined influence which military, intellectual, and moral power gave to the claim of the European emigrants.

The whites assert the right to a qualified dominion over the Indian tribes and to regard them as enjoying no higher title to the soil than that founded on simple occupancy and to be incompetent to transfer their title to any other power than the government which claims the jurisdiction of their territory by right of discovery. This assumed claim or right arises from the necessity of the case. To leave the Indians in possession of the country was to leave the country a wilderness, and to govern them as a distinct people, or to mix with them and admit them to an intercommunity of privileges, was impossible under the circumstances of their relative condition. The peculiar character and habits of the Indian nations rendered them incapable of sustaining any other relation with the whites than that of dependence and pupilage. There was no other way of dealing with them than that of keeping them separate, subordinate, and dependent, with a guardian care thrown around them for their protection.

The rule that the Indian title was subordinate to the absolute, ultimate title of the government of the European colonists, and that Indians were to be considered as occupants, and entitled to protection in peace in that character only, and incapable of transferring their right to others, was the best one that could be adopted with safety. The weak and helpless condition in which we found the Indians, and the immeasurable superiority of their civilized neighbors, would not admit of the application of any more liberal and equal doctrine to the case of Indian lands and contracts. It was founded on the pretension of converting the discovery of the country into a conquest, and it is now too late to draw into discussion the validity of that pretension or the restrictions which it imposes. It is established by numerous compacts, treaties, laws, and ordinances, and founded on immemorial usage. The country has been colonized and settled and is now held by that title. It is the law of the land, and no court of justice can permit the right to be disturbed by speculative reasonings on abstract rights. . . .

If the settled doctrine on the subject of Indian rights and titles was now open for discussion, the reasonableness of it might be strongly vindicated on broad principles of policy and justice, drawn from the right of discovery, from the sounder claims of agricultural settlers over tribes of hunters; and from the loose and frail, if not absurd, title of wandering savages to an immense continent, evidently designed by Providence to be subdued and cultivated, and to become the residence of civilized nations.

When the country, now within the dominion of the United States, was first discovered by Europeans, it was found to be, in a great degree, a wilderness, sparsely inhabited by tribes of Indians whose occupation was war and whose subsistence was drawn chiefly from the forest. Their possession was good and perfect to the extent requisite for subsistence and reasonable accommodation, but beyond that degree their title to the country was imperfect. Title by occupancy is limited to occupancy in point of fact. Erratic tribes of savage hunters and fishermen, who have no fixed abode or sense of property, and are engaged constantly in the chase or in war, have no sound or exclusive title either to an indefinite extent of country, or to seas and lakes, merely because they are accustomed, in search of prey, to roam over the one or to coast the shores of the other. Vattel1 had just notions of the value of these aboriginal rights of savages and of the true principles of natural law in relation to them. He observed that the cultivation of the soil was an obligation imposed by nature upon mankind, and that the human race could not well subsist, or greatly multiply, if rude tribes, which have not advanced beyond the hunter state, were entitled to claim and retain all the boundless forests through which they might wander. If such people will usurp more territory than they can subdue and cultivate, they have no right to complain if a nation of cultivators puts in a claim for a part. Though the conquest of the half-civilized empires of Mexico and Peru was a palpable usurpation and an act of atrocious injustice, the establishment of the French and English colonies in North America was entirely lawful, and the colonists have not deviated from the precepts of the law of nature in confining the natives within narrower limits. . . .

  1. 1. Emer, or Emmerich, de Vattel (1714–1767) was a Swiss jurist.
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