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1. Indian Commerce Clause Differing from Articles of Confederation
Discussion
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Articles of Confederation DiscussionHow does the language of the Commerce Clause differ
from that of the Articles of Confederation? What do the language and history of the Indian
Commerce Clause suggest with respect to state and federal power over Indian affairs?short
discussion, only has to be 5-6 sentences. no quotes or anything. Indian Commerce Clause
Differing from Articles of Confederation
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BULR 329 (Cite as: 69 B.U. L. Rev. 329) Page 1 Boston University Law Review March, 1989
*329 THE PROCLAMATION OF 1763: COLONIAL PRELUDE TO TWO CENTURIES OF
FEDERALSTATE CONFLICT OVER THE MANAGEMENT OF INDIAN AFFAIRS [FNp] Robert N.
Clinton [FN227] Copyright 1989 by the Trustees of Boston University; Robert N. Clinton.
History is a cyclic poem written by Time upon the memories of man. –PERCY BYSSHE
SHELLEY [FN1] On October 7, 1763–225 years ago–the British colonial government issued
the famous Proclamation of 1763. [FN2] This important document restructured the
management of Indian affairs in the original thirteen states, Canada, and Florida.
Additionally, the Proclamation established governmental structures for newly acquired
British territories in Canada, East and West Florida, and Grenada, which were secured by
cession from France following Pontiac’s Rebellion and the end of the French-Indian wars. In
particular, the Proclamation directly addressed three issues of colonial Indian policy, issues
that continued to plague United States Indian policy after the Revolution: Indian property
rights, tribal separatism and autonomy, and the primacy of the central government over the
colonies in the management of Indian policy. Indeed, more than any other document or
single historical event during the colonial period, the Proclamation of 1763 embodied an
enlightened colonial policy that sought to facilitate both Native American trade and colonial
expansion while recognizing Indian rights in the land. Even though the colonies, and later
the United States, failed to realize and preserve Indian rights, the Proclamation and its
aftermath retain great historical significance: they established the basic framework for
conceptualizing *330 and structuring the Indian policy of the United States following its
break with Great Britain. In Canada, the Proclamation maintains legal significance in the
resolution of legal claims of Canadian Indians; it is a legally enforceable document. [FN3] In

2. contrast, the document has been virtually ignored in the Native American law of the United
States, especially in the caselaw of this century. The sharp legal break with Great Britain
occasioned by the Revolution and the contempt with which revolutionary Americans
viewed King George III, the Proclamation’s originator, partly explain the document’s
absence from American caselaw. Indian Commerce Clause Differing from Articles of
Confederation DiscussionStill, understanding the historical events that produced the
Proclamation of 1763 and the British Indian policies it inspired offers great insight into the
two centuries of federal-state conflict over the management of Native American policy that
followed the Revolution, conflict that continues to plague Native American policy to this
day. Authorities sometimes present or discuss Indian law and the history of Indian policy as
if they first emerged only after the Revolutionary War or the signing of the Declaration of
Independence in 1776. Some credit Chief Justice Marshall with inventing or first articulating
legal doctrines of Indian tribal sovereignty or Indian land rights. [FN4] Yet, regulation of
contact between Indians and the Euro-American settlers and their governments began
nearly two hundred years before the Revolution. The Proclamation of 1763 represented an
important milestone in the development of this regulation and policy. This Article examines
the history and influence of the Proclamation in colonial and modern American law and
demonstrates the failure of federal and state governments to learn from the teachings of
this past. Parts I and II first resurrect, describe, and survey the political and diplomatic
history surrounding the Proclamation of 1763, exploring the gradual British
disenchantment with colonial management of Indian affairs. Next, Part III analyzes the
Proclamation in detail, emphasizing its significance in the restructuring of British colonial
machinery for managing Indian affairs and *331 protecting Indian rights to land and
resources. The last Part of this Article examines the Copr. © West 2003 No Claim to Orig.
U.S. Govt. Works 69 BULR 329 (Cite as: 69 B.U. L. Rev. 329) Page 2 legacy of the colonial
period in the development of modern Native American law, highlighting how themes first
played out during the colonial period, and especially in the Proclamation of 1763, were
repeatedly replayed in later Indian policy decisions. The Article concludes with a simple but
urgent recommendation: federal and state governments as well as courts must learn from
this difficult history if they are to begin to conduct themselves respectfully in the
management of Indian affairs. I. COLONIAL MANAGEMENT OF INDIAN AFFAIRS BEFORE
1763 Indian Commerce Clause Differing from Articles of Confederation DiscussionPrior to
the issuance of the Proclamation of 1763, local colonial governments, often led by the
colonial governor, primarily managed diplomatic, military, and economic relations with
North American Indian tribes. During most of the seventeenth and the first half of the
eighteenth centuries, then, the local European settlers, who had the most to gain by striking
unfair or even fraudulent business arrangements with surrounding Indian tribes, retained
primary responsibility for negotiating and securing land cessions from the tribes. These
land cessions were essential to the growing Euro-American colonial settlements and the
regulation of the lucrative trade these settlers undertook with Indian tribes. But, despite the
strong self-interest of colonial governments, British law sought to assure the indigenous
Native American occupants of North America a continued right of occupancy in their soil,
often called “aboriginal title,” “original Indian,” or simply “Indian title.” [FN5] *332 This

3. aboriginal title was subject only to the British sovereign’s right of first purchase or, as it
sometimes was called, the sovereign’s naked fee title. [FN6] *333 Yet protection of
aboriginal title was far from complete, for title could also be extinguished under British law
and the laws of most other European colonial powers through actual conquest–presumably
pursuant to a defensive, legitimate war–or through the voluntary abandonment of the land
by its aboriginal occupants. [FN7] Self- interested local colonial officials, however, often
interpreted and enforced such legal rules in a fashion that severely constrained the scope of
this right. Puritan leaders in the Massachusetts Bay Colony, for example, asserted that the
Indians’ right of continued occupancy–their aboriginal title–only applied to lands that the
tribes actively and regularly cultivated. [FN8] These officials considered other Indian lands,
such as vital hunting or food gathering areas exclusively held and used by a tribe for
subsistence, to be nothing more than vacant waste, subject to immediate disposition by
colonial authorities without the need for negotiating land cessions from the tribe. [FN9] For
the most part, the colonial authorities in Massachusetts Bay were dealing with Indians of
Algonquin stock who relied on both agriculture and seasonal hunting for substinence, but
whose villages were comparatively less stable than those of their brothers and sisters in
colonies farther south. [FN10] Thus, narrow Puritan interpretation of Indian land rights
deprived many New England tribes of access to habitat areas needed for economic
subsistence. Not surprisingly, such intrusions on Native American economies and rights
produced significant adverse reactions from the Indian tribes and their leaders (called
sachems in colonial New England). Many of the famous seventeenth-century Indian wars
and depredations in New England resulted from the greed of colonial officials in their
implementation, or misapplication, of a body of legal doctrine designed to protect Indian
resources and prerogatives. In particular, King Philip’s War and other Indian uprisings
around 1675 were fueled by what the indigenous populations saw as unjustified Euro-
American intrusions into hunting areas and other domains traditionally used by the tribes.
[FN11] Of course, local colonial authorities capitalized on these uprisings and used them to
justify further abrogation and abridgement of Native American resources and autonomy.
The establishment of the so-called “praying Indian towns” in the Massachusetts *334 Bay
Colony, Virginia’s special feudal political relations with so-called “tributary tribes” (mostly
remnants of the Powhatan Confederacy, including the Pamunkey), and the special trust
relations in other New England colonies for the Pequot and Mohegan all represented the
EuroAmerican spoils of such conflicts. [FN12] While management of British-Indian relations
was left primarily to local colonial authorities, the British Crown always reserved the right
of oversight. Indian Commerce Clause Differing from Articles of Confederation
DiscussionOnly on rare occasions during the first century of colonial experience did London
actually exercise such authority, and, when it did so, it was usually in response to petitions
or protests from Indian leaders. One of the earliest instances of active intervention by the
Crown came in 1664, when King Charles II appointed a royal commission to investigate
complaints he had received from the Indians about colonial mistreatment of their tribes.
The following year, after due investigation, the royal commissioners instructed colonial
authorities that they could not properly take Indian land by conquest unless that conquest
was just (i.e., defensive) and the land was within the scope of the colonial charter. [FN13]

4. The royal commissioners further advised colonial Copr. © West 2003 No Claim to Orig. U.S.
Govt. Works 69 BULR 329 (Cite as: 69 B.U. L. Rev. 329) Page 3 authorities that confiscation
of Indian hunting lands and other uncultivated areas as vacant waste was illegal, because
“no doubt the country is [the Indians’] till they give it or sell it, though it be not improoued
[[[sic].” [FN14] Despite the efforts of these royal commissions, local colonial management of
Indian affairs was floundering by the early eighteenth century, and increased supervision
by London seemed necessary. Nevertheless, the changes that culminated in the
Proclamation of 1763 came quite gradually. The first major eighteenth- century challenge to
local colonial control of *335 relations with Indian tribes occurred in what one
commentator has called “the greatest cause ever heard at the Council Board.” [FN15]
Mohegan Indians v. Connecticut, [FN16] a very important yet seldom cited case, was
perhaps the first formal litigation of North American Indian rights. In 1703, Oweneco, the
son of the great Mohegan leader Uncas, petitioned the Queen in Council, claiming that
colonial land grants by Connecticut officials violated the Mohegans’ aboriginal title. The land
dispute turned on the interpretation of a series of treaties and agreements negotiated
between 1659 and 1681. Uncas had granted some form of title over all of the Mohegan lands
to Major John Mason, an officer of the colony. Uncas then had a smaller tract of land entailed
by the colony for the benefit of the tribe but then relinquished tribal title again to the colony
in 1681 following an agreement that prohibited tribal land grants to anyone without the
colony’s consent. The Mohegans thought that the effect of the 1681 agreement was simply
to grant the colony of Connecticut a right of first purchase in the land–a quite reasonable
construction in light of the consent proviso. The colony thought otherwise, however, and
began parceling the land out for settlement. The Mohegans petitioned the Crown for
assistance. The case was heard thereafter by royal commissions on a somewhat less than
active basis for almost seventy years between 1703 and 1773. While the Mohegans
ultimately lost title to most of the land they claimed outside of areas actually occupied by
the tribe, the case established two basic principles of Indian law: (1) the central government
(then in the form of the British Crown government in London), rather than local colonial
governments, ultimately controlled Indian policy; and (2) the Indian tribes were separate
sovereign nations not controlled by local laws of the colony. Perhaps the most important
skirmish in this protracted litigation occurred in 1743, when non-Indian tenants in
possession of Mohegan lands disputed the jurisdiction of the royal commission appointed to
hear the case. They claimed that such royal intervention in colonial affairs violated the
Connecticut colonial charter and the laws of the colony. In short, they basically were arguing
that the Mohegans were subject to Connecticut laws and governance and that the resolution
of their land claims should take place in colonial courts rather than through royal
commissions. The royal commission *336 rejected this attack on its jurisdiction:
Commissioner Daniel Horsmanden of New York held, over one dissent, that the Indian
tribes within colonial boundaries were distinct peoples subject neither to the laws of
England nor of colonial courts. He argued that a land dispute between such a distinct people
and English subjects must be determined by the law of nature and of nations and that
hearing such international disputes was the province of royal commissions, not of local
courts. [FN17] The tribes and their members owed no allegience to local law or local courts.

5. Indian Commerce Clause Differing from Articles of Confederation DiscussionThe Mohegan
case initiated increased centralization of oversight and control of colonial Indian regulation
by the British government. With the exception of the Royal Commission of Charles II, the
British government generally had left authorities on their own in the regulation of Indian
relations during the seventeenth and early eighteenth centuries. While instructions to
colonial governors sometimes contained general directives requiring the governors to
assure peaceful relations with the Indians, [FN18] formation and implementation of Indian
policy remained primarily with colonial authorities until 1723. Of course, a steady flow of
communications kept London informed of the Indian problems in colonial America. Until
1723, however, this flow of communications generally was a one-way street–from the North
American colonies to London. [FN19] The role of the British government during this period
was limited to providing financial support for the trade and diplomatic initiatives, gifts, and
military defense preparations undertaken by colonial authorities. [FN20] *337 After 1723,
however, the Board of Trade began to assume a more active role in the regulation of Indian
affairs. [FN21] Competition with France in the North and West and, to a lesser extent, Spain
in the South for trade, land, and influence on the North American continent heightened
British concern over Indian matters. The battle with the French for influence, trade, and
control over the Indians was particularly evident in New York, where the Five (later Six)
Nations confederacy of the Iroquois, known as the Hodenosaunee, occupied pivotal
locations between French and British settlements and controlled access to trade routes with
tribes to the West. [FN22] Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 69 BULR
329 (Cite as: 69 B.U. L. Rev. 329) Page 4 *338 Given this French threat to British interests in
North America, coordination of colonial Indian policy became increasingly essential to Great
Britain. Yet, by 1722, disputes had broken out among various colonial authorities over
control of Indian matters. In particular, Governor Burnet of New York insisted on playing a
preeminent role in managing Indian affairs. During late August and early September of
1722, the governors of Virginia, Pennsylvania, and New York met with the Iroquois to
discuss a variety of issues, including French influence. [FN23] At this conference, Virginia
entered into a treaty with the Iroquois which demarcated the Potomac River and the crest
of the Appalachians as a boundary between the Iroquois on the one hand and Virginia and
its tributary tribes on the other. [FN24] The Massachusetts Bay Colony also desired to join
the conference in order to secure the cooperation of the Iroquois in defending that colony
against the “Eastern Indians”–eastern Algonquins under the influence of the French. New
York colonial authorities, however, insisted that New York regulate all affairs with the
Iroquois Confederation. They demanded that the government of Massachusetts first secure
approval of the governor and Council of New York for the points which the Boston
government intended to propose. While the governors of Virginia and Pennsylvania
accepted this procedure, Boston balked and was excluded from the conference.
Nevertheless, Governor Burnet of New York placed before the Iroquois the request of the
Boston authorities for intervention against the Eastern Indians. Perhaps responding to this
quarreling among the colonies, the Board of Trade wrote to Governor Burnet on July 9,
1723, indicating satisfaction at the outcome of the 1722 conference at Albany but gently
encouraging more cooperation among the colonies: *339 [W]e congratulate you upon

6. having been so useful to the Neighbouring Provinces upon that occasion. It is certain that
nothing can make the British intrest in America more formidable to their Neighbours than a
perfect Union among themselves, and we hope that the Govrs of all his Majesty’s Plantations
abroad upon all occasions endeavor to convince as well the Indians as their European
Neighbours that they have but one King to obey and one common interest to pursue. Indian
Commerce Clause Differing from Articles of Confederation Discussion[FN25] During the fall
of 1724, the governments of New York and Boston cooperated in a conference at Albany
with the Iroquois Confederation to renew Massachusetts’ invitation for the Iroquois to
intercede for Boston against the eastern Algonquins. [FN26] The seeds for greater Crown
oversight of Indian affairs, however, had already been sown. In 1721, the Board of Trade
acknowledged the need for increased cooperation among the colonies in a London report
prepared for the King which addressed the state of the colonies and plantations in North
America. [FN27] Stressing the importance of a growing and organized trade with the
Indians to combat French influence, the report recommended greater coordination and
communication between the colonies with respect to Indian affairs: And that all the
Governors of your Majesty’s plantations may be informed of the state of every other
Government, with respect to the Indians, it will be necessary, that every governor upon his
making any treaty with any Indian nation, should immediately communicate the same to all
other your Majesty’s Governors upon the continent. [FN28] Ironically, the first major
intervention by the Crown in the regulation of Indian affairs during the eighteenth century
frustrated New York colonial efforts to combat French influence among the Iroquois
Confederation. On November 19, 1720, the New York legislature, in an effort to end the
growing French trade with the Iroquois and the Indians to the west, enacted a statute that
forbade trade with the French in goods intended for the Indian *340 trade. [FN29] Though
originally of limited duration, this act was repeatedly revived and modified during the
following decade. [FN30] These statutes apparently affected the commercial interests of a
number of London merchants who protested these laws by petitioning the Crown in 1724.
[FN31] The merchants complained that the New York law resulted in a decrease in both
British exports to New York and fur imports from the colony. They also suggested that these
laws actually had not decreased French trade with the Indians, but instead forced the
French in Canada to secure their trade goods directly from France or Holland, all to the
disadvantage of English merchants. Governor Burnet of New York countered that these laws
had given “great advantage” to the British fur trade; he explained that western tribes now
came to Albany or to British traders with the Iroquois despite French military efforts to
block the trade routes to British traders in New YIndian Commerce Clause Differing from
Articles of Confederation Discussion