In 1773, with the empire on the brink of revolt, the Privy Council gave the final ruling in the case of the Mohegan Indians versus the colony of Connecticut. Thus ended what one eighteenth-century lawyer called “the greatest cause that ever was heard at the Council Board.”Footnote ¹ After a decades-long battle for their rights, involving several appeals to the Crown, three royal commissions, and the highest court in the empire, the Mohegans' case against Connecticut was dismissed. The dispute centered on a large tract of land (~20,000 acres) in southeastern Connecticut, which, the Mohegans claimed, the colony had reserved for them in the late seventeenth century.Footnote ² Concerned that the colony had violated its agreements, the Mohegans, aided by powerful colonists with a pecuniary interest in this tract of land, appealed to the Crown for redress. As a result of this appeal, what had been a narrow dispute over land became part of a larger conflict between the Crown, the colony, and the tribe over property and autonomy in the empire.

Although it was the longest dispute of its kind in the eighteenth-century British world, the Mohegan Case has received surprisingly little attention from modern scholars. Moreover, of the few recent scholarly accounts of the case, most focus on only one aspect of this long legal struggle. Mark Walters' pioneering article looks primarily at the stance of the Crown officials who adjudicated the dispute between the colony and the tribe, in order to ascertain whether the case can yield a precedent in support of Native self-government in modern-day Canada. David Conroy's insightful article also examines only one side of the dispute—the arguments of William Bollan, the tribe's lawyer before the 1743 royal commission, who believed that respecting Native rights would strengthen royal power in America. Similarly, Amy Den Ouden's ethnohistorical study of the dispute uncovers the Mohegans' perspective and makes a compelling case for their agency, but does not discuss the arguments made before the 1743 commission where the case received its fullest airing.Footnote ³

By contrast, this article analyzes the legal claims made by all of the principal actors in the case—the Crown and its agents, the colony of Connecticut, and the Mohegans and their English guardians. In doing so, it uses legal sources to understand the encounters between the English and Native Americans in the eighteenth century.Footnote ⁴ In particular, it asks how English jurists, officials, and settlers on both sides of the Atlantic understood indigenous rights, as well as how the Mohegans understood their own legal status in a world transformed by the arrival of the English.

I

Recent scholarship on the Algonquians of New England contends that after King Phillips' War (1675–76) an era of shared sovereignty and mutual accommodation came to an end and the tribes—especially those in the south such as the Mohegans—were legally subjugated to the English settlers. As Katherine Hermes puts it in The Cambridge History of Law in America, “after 1675, Algonquin jurisdictional autonomy . . . ended abruptly,” and they were “reduced to exercising jurisdiction over themselves at English sufferance, on reservation lands set aside for them.” Jenny Pulsipher has added a trans-Atlantic dimension to this story, arguing that in the seventeenth century the Algonquin tribes were able to reduce the autonomy of the Puritan colonies by appealing to the Crown for redress against the depredations of the settlers. But despite her emphasis on Native agency, Pulsipher also sees the war as a turning point, after which the tribes residing within colonial borders were “completely subordinate to English authority, no longer sovereign peoples.”Footnote ⁵

A similar conclusion about the subordinate legal status of indigenous peoples has dominated recent scholarship on early modern European justifications for empire. According to this work, beginning in the sixteenth century, European theorists drew on Roman law to develop a new law of nations (ius gentium) which would govern relations between the European empires and the indigenous peoples they encountered, as well as between the empires themselves as they competed for territory.Footnote ⁶ Because the tenets of this early modern law of nations were seen as a codification of natural law, Europeans deemed them binding on all peoples everywhere. In the Spanish world, jurists and theologians claimed that the indigenous people could be justly conquered because they had violated the natural law rights of Europeans to travel, trade, and proselytize in the Americas.Footnote ⁷ But according to this scholarship, English thinkers tended to argue that the New World was res or terra nullius—that is, unowned or empty land—because the Native Americans were not cultivating it in a fashion that the doctrine of natural law considered necessary to establish property rights.Footnote ⁸ This emphasis on the way in which land was used also functioned to undermine Native sovereignty, for only peoples who had extensive property holdings and a money economy would have any need for fixed laws and a settled government. And because Natives were still in a pre-political state of nature (or had at best a weak form of sovereignty), they could not claim jurisdiction over unimproved land. As such, they could be dispossessed without the need for treaties, a formal cession, or indeed any kind of consent. According to a number of influential books and articles, the main thinker in this natural law tradition in the British world was John Locke, whose ideas dominated Anglo-American justifications for empire in the eighteenth century.Footnote ⁹ According to Anthony Pagden, “the major conclusion which Locke drew from his characterization of Amerindian society was that it was possible for Europeans to disregard all aboriginal forms of government, and consequently to deny them any status as ‘nations’. This meant that all dealings between Europeans and Amerindians were, in effect, between legitimate political societies on the one hand and simple individuals on the other.”Footnote ¹⁰

This scholarship on Locke and empire also contends that natural law theory was particularly attractive to English people as it allowed them to eschew claims to empire based on conquest, a legal doctrine that, given how the Norman invasion was used by apologists for royal power at home, raised the worrisome specter of monarchical absolutism. As David Armitage argues in an important article on the connections between Locke's political theory and his involvement with the founding of Carolina, “the agriculturalist argument was the best justification that could be given for dispossession after arguments from conquest and from religion had been gradually abandoned.” Moreover, Armitage claims, the English had learned from the Spanish that “the argument from conquest could only justify imperium over native peoples but not dominium over American land.”Footnote ¹¹

This new scholarship has enriched our understanding of the ideological underpinnings of early modern empire, highlighting the connections between some of the seminal political ideas of the seventeenth and eighteenth centuries and the dispossession of the indigenous peoples of the Americas.Footnote ¹² But it has tended to base its conclusions about imperial ideology on the work of a handful of prominent European theorists, while giving little or no attention to the ideas of the royal officials and settlers who were responsible for claiming extra-European territory.Footnote ¹³ This scholarship has also failed to examine the legal ideas and political norms articulated by the Native Americans themselves as they confronted European claims. Moreover, its emphasis on the European denial of indigenous rights overlooks the many treaties that Europeans signed with Native Americans, as well as (especially in the British Empire) the long-standing practice of obtaining land by purchase and voluntary cessions.Footnote ¹⁴ This in turn raises the question of the relationship between our current understanding of the intellectual underpinnings of European expansion, in which the idea that the New World was in effect a legal vacuum, lacking both owners and sovereigns, is dominant, and the actual policies of the early modern empires towards indigenous peoples.Footnote ¹⁵

The rich array of legal records left by the Mohegans' long struggle against dispossession allows us to uncover a more complex trans-Atlantic debate about indigenous rights in the eighteenth-century British world, from claims that they were conquered peoples to powerful defenses of their political sovereignty and territorial integrity. And the fact that these arguments about dispossession were made in a legal forum enables us to tie them more closely to concrete disagreements over the ownership of land in America, the binding nature of treaties, and the locus of authority in the empire. The competing conceptions of indigenous rights presented in the case also reminds us of the importance of legal pluralism in early modern empires, characterized as they were by delegated authority, overlapping jurisdictions, and, as a consequence, by a number of competing sources of juridical authority, from municipal law (in Anglo-America, the common law), to Roman law, the law of nations, and natural law.Footnote ¹⁶

After describing the seventeenth-century background to the dispute, this article examines the arguments about the Mohegans' legal claims before the first royal commission in 1705. It then traces the subsequent history of the case, culminating with an analysis of the arguments over Native American rights before the final royal commission in 1743.

II

The origins of the conflict between the Mohegans and Connecticut lie in the complicated aftermath of the Pequot War in the late 1630s.Footnote ¹⁷ Uncas, sachem of the Mohegans, used the warfare between the English and the Pequots to undermine the powerful Pequot sachem, Sassacus.Footnote ¹⁸ According to Michael Oberg, “with the Pequots under attack by the Narragansetts and the Dutch, and ensnared in an increasingly tangled web of controversy with the English, Uncas saw alliance with the newcomers as a means to increase both his own power and that of the Mohegans.”Footnote ¹⁹ In his bid to usurp Sassacus, Uncas allied with Major John Mason, an English soldier of fortune who prosecuted the war against the Pequots with particular brutality, torching their fort at Mystic and killing 600 men, women, and children.Footnote ²⁰ Through Uncas' strategic alliance with the English, the Mohegans were able to replace the defeated Pequots and create a new Mohegan confederation that included Pequots and former Pequot tributaries.

The relationship between Uncas and Mason was central to the ensuing conflict over the Mohegans' land. As a result of his help in defeating the Pequots in the 1630s, Uncas came to control a large amount of territory east of the Connecticut River. Facing encroachment from the Dutch, the French and their Native American allies, as well as from the other English colonies, it was in the best interest of Connecticut “to help Uncas consolidate lands and Indian peoples under his rule. Uncas obliged by claiming a huge tract of land that constituted most of southeastern Connecticut and a small part of what is today Rhode Island.”Footnote ²¹

But in the decades following the defeat of the Pequots, Uncas' control over this territory was tenuous. Massachusetts, as well as the Narragansetts under their sachem, Miantonomo, made claims to the former Pequot lands, as did factions within Connecticut opposed to Mason's alliance with Uncas.Footnote ²² In order to safeguard his new acquisitions, Uncas entered into a series of agreements with both the colony and the Mason family. In 1638, he and his enemy, Miantonomo, signed the Treaty of Hartford, in which they agreed to submit their quarrel to Connecticut's adjudication rather than resort to arms.Footnote ²³ And in the fall of 1640 in a vaguely worded deed, Uncas appeared to cede all of his lands to Connecticut, save “that ground which at present is planted and in that kind improved by us.”Footnote ²⁴ According to his biographer, however, Uncas saw the “deed not as a transfer of property but as something akin to a recognition of the colony's right of preemption over Indian lands within its borders.” In other words, the deed was more like a trust, as Uncas would continue to control the lands he had acquired during the war, and would have the additional benefit of Connecticut's assistance in keeping them free from intruders.Footnote ²⁵

Following this cession, however, the pressure on the tribe's lands continued to increase. So in 1659, beset by the Narragansetts and by expanding English settlements, Uncas entrusted the remainder of the Mohegans' territories to Mason, who now would have to consent to any alienation of the tribe's land.Footnote ²⁶ By doing so, Uncas hoped to protect the tribe from being cheated by unscrupulous colonists, as well as use Mason's connections in the councils of Connecticut to shield them militarily from their tribal enemies.Footnote ²⁷ For his part, Mason aimed to profit from his privileged access to the lands the tribe controlled. In 1660, intending to aid the colony in securing a royal charter, Mason transferred jurisdiction over this land to the colonial government on the condition that, when they opened it for settlement, sufficient land would be set aside for the Mohegans.Footnote ²⁸ And in 1662, helped in part by the land deeded to the colony by Mason, Connecticut received a royal charter, the boundaries of which included the Mohegans' territory.

Emboldened, the colony's new governor, John Winthrop, Jr., claimed that the relationship between Mason and Uncas was now void as the granting of the charter had extinguished the Mohegans' title. The colony also enacted a law that made all individual purchases of land from Native Americans subject to approval by the General Court. Mason countered that the charter only transferred jurisdiction over the land within the bounds of the patent but not the underlying title. Mason also signed further deeds with the Mohegans in 1661 and 1665, which granted him half of the proceeds of any sale of the tribe's lands in return for his assistance in representing their interests before the General Court.Footnote ²⁹ And in 1671, the year before he died, Mason entailed a tract of land eight miles by four miles—or approximately 20,000 acres—lying between the towns of New London and Norwich for the exclusive use of the tribe.Footnote ³⁰ This tract—referred to subsequently as the “sequestered lands”—was to be the principal (although not the only) one in question in the ensuing legal dispute.

Despite the entailment, in the decade following Mason's death, the towns of New London and Norwich began to encroach on the Mohegans' reserved lands.Footnote ³¹ The fact that the Mohegans once again allied with the English in King Philip's War did not halt this process of gradual dispossession, because the war changed the balance of power in New England, rendering allied tribes such as the Mohegans less important for the region's defense. Moreover, the violence of the conflict increased colonial hostility toward the Native Americans, especially among the settlers on the frontier who desired their land.Footnote ³² Nevertheless, in the years following the war, Uncas continued to resist the colony's encroachments through law and not violence.Footnote ³³ In 1681, he concluded a treaty with Connecticut in which it undertook to provide “a sufficiency of land” for the tribe to plant on and to ensure that “a just price be paid” for “whatever plantations we grant to any people in their countries and territories.” Also, the colony pledged that the Mohegans “shall have equal justice from us as our own people, in all manners which they shall bring before us.” The colony also undertook to help defend the Mohegans should they be attacked by their enemies. In return, Uncas granted the colony “all my lands and territories,” pledging that he would not dispose of them to anyone else without the colony's consent.Footnote ³⁴ In return for these concessions, he demanded a “reasonable satisfaction for my propriety in them as we shall agree.” Uncas also promised that he and his successors will be “friends and allies to the said colony” and not make “peace and war” without taking “advice” from “the General Court of Connecticut.” Finally, Uncas promised “to assist” the colony against any “enemy” with “a competent number of fighting men.”Footnote ³⁵

In 1684, the year he died, Uncas was also able to get the colony to establish a commission to ascertain the tribe's boundaries, but the final report confirmed that the bulk of their lands were no longer in their control.Footnote ³⁶ Upon Uncas' death in 1684, his son, Oweneco, became sachem. In the same year, John Mason's son, Samuel, assumed his father's role as the colony's legal guardian. Samuel Mason used his long tenure as an assistant in the General Court to defend the tribe, arguing that the colony still needed the Mohegans for its defense, and trying to preserve their land from settler encroachment.Footnote ³⁷ However, despite Mason's best efforts, by the late 1680s much of the territory the Mohegans had occupied at the end of the Pequot war was gone. All that remained was the land that Mason had entailed in 1671, as well as another tract on the northern boundary of Lyme, and a “third, usually styled the Mohegan Hunting Grounds,” which “lay between the townships of Norwich, Lebanon, Lyme, Haddam and Middleton.”Footnote ³⁸

In addition to the colony's appropriation of their lands, the Mohegans—Uncas as well as his sons—had also deeded large tracts of land to various colonists, often without the consent of the Mohegan community.Footnote ³⁹ In 1659, there was a large sale to the town of Norwich, made with the consent of Mason.Footnote ⁴⁰ A similar alienation occurred in 1668, this time to New London.Footnote ⁴¹ And in 1680 Oweneco deeded all the lands his father had given him in Quinnebag to the powerful Fitch family.Footnote ⁴² But the Mohegans' situation became truly dire in the late 1690s when, despite the terms of the 1681 treaty, Connecticut began to grant away even the entailed or “sequestered” land to new townships, often without their consent or that of the Mason family.Footnote ⁴³ In 1698, the colony's assembly granted the governor, Fitz-John Winthrop, a farm out of these lands.Footnote ⁴⁴ In 1699, part of the Mohegan hunting grounds was included within a grant made to the new town of Colchester.Footnote ⁴⁵ And, in 1703, the General Court annexed the remainder of the sequestered lands to New London “without the Mohegans or their English protectors being consulted.”Footnote ⁴⁶

Nicholas Hallam, a political ally of the Masons, observed the effect of the colony's usurpations on the Mohegans. In 1703, he was attempting to ascertain the boundaries between the Mohegans and the town of New London for Samuel Mason when he came across about thirty to forty “Mohegan Indians, men, women, and children, in a very poor and naked condition, many of them crying lamentably.” When he asked them the reason for their plight, they told him “that the governor had been up with them that day, and had drove them from their planting land, which they had enjoyed ever since the English came into the country, and that they were not willing to leave the English, unless they were forced to it.”Footnote ⁴⁷

III

In response to the annexation of their remaining lands, Mason's son, Samuel, and Uncas' son, Oweneco, sought redress once again from the General Court. Failing to obtain it, they appealed across the Atlantic to Queen Anne, claiming that the colony was violating the terms of the various agreements that had set aside land for the tribe.Footnote ⁴⁸ In making this appeal, Oweneco and the Masons received assistance from disaffected elites in Connecticut such as Nicholas Hallam, who had recorded the plight of the dispossessed Mohegans, and his brother John. The Hallams were angry with Connecticut's government for claiming that the colony's charter barred their right to appeal to the Crown over a court decision that had gone against them. The Hallams therefore had an interest in the Mohegans' case, as they hoped it would weaken Connecticut's legal autonomy.Footnote ⁴⁹ In late 1703 and early 1704, Nicholas Hallam appeared before the Board of Trade in order to convince them that Connecticut's charter should not be a barrier to the Mohegans' attempts to seek redress. As he put it: “this being a controversy between the Indians and that Government, H.M. [Her Majesty] may, nothwithstanding the privileges then granted to the said Government, grant a Commission to indifferent persons in that or the adjacent Colonies to enquire into and determine this matter . . .” Hallam also told the Board that such a commission should be authorized “to put the Indians into possession of their lands in case it shall duly appear they have been wrongfully disseised.”Footnote ⁵⁰

Pursuant to the appeal, Hallam had a short letter printed in London in which Oweneco made his case to “the Great Queen Ann, and to her Noble Council” about the “Oppression” that he and his “People” had suffered at the hands of the General Court. In it, Oweneco warned that should he fail to obtain relief from the Queen, his “People” might “scatter from Me, and flee to the Eastern Indians,” who, he noted, were “the French's Friends, and the English's enemies.” In addition to pointing out the strategic significance of the Crown's alliance with the Mohegans, Oweneco argued that they had a “Hereditary Right to the Soyl and Royalties of our Dominions and Territories, before the English came into our Country.” Oweneco also claimed that his authority as sachem was “not confer'd . . . by the English, but by the gods.” His letter further bolstered the authority of the sachemship by relaying a story of a pipe which the gods had given his ancestors as “a Token” of “Our happy Reign.” He then spoke of gifts—a Bible and a sword—sent by Charles II which the tribe had kept in the same place as a sacred pipe given them by their “gods.”Footnote ⁵¹ In establishing the divine origin of his family's rule, Oweneco sought to place himself on an equal footing with the English Crown, a status that the exchange of diplomatic gifts with Charles II reinforced.Footnote ⁵² Oweneco's claim of equality with the English monarch was in marked contrast to the case Hallam made before the Board of Trade on the tribe's behalf, in which he claimed that the Mohegans had always “acknowledged the Kings and Queens of England as their Sovereigns and have been ever ready to pay all due obedience and to yield subjection to them.”Footnote ⁵³

Appended to Oweneco's letter was a short statement of the Mohegan's legal case against Connecticut. Although written in the third person, its view of the tribe's political status is closer to Oweneco's than to Hallam's.Footnote ⁵⁴ It began by stating that “Owaneko, and his Ancestors, were formerly Chief Princes, and Owners of All, or great Part of the Country now called Connecticut-Colony in New-England.” Furthermore, it claimed that “when the English first came, these Indians received them very kindly, and for a very small and inconsiderable Value, parted with all or most of their Lands to the English, reserving to themselves only a small Quantity of Land to Plant upon, and Hunt in.” The Mohegans had also “assisted” the colony “in their wars against the other Indians; and have, until of late, quietly enjoyed their reserved Lands.” However, “about a Year or two ago,” the colony annexed “these lands to the Townships of Colchester and New London.” As a result, “these poor Indians have been unjustly turn'd out of Possession, and are thereby destitute of all means of Subsistence.”Footnote ⁵⁵ At the heart of the Mohegan's legal case, then, was the claim that Connecticut had violated its alliance with the tribe, the terms of which allowed them to maintain their political autonomy and to continue to own a portion of the territory that they had once controlled outright.

The Board of Trade referred the Mohegans' appeal to the Crown's legal advisors. On February 29, 1704, the attorney general gave his opinion on the merits of the Mohegans' appeal:

According to the attorney general, then, the Mohegans were the original owners of the disputed territory. Moreover, the grant of a royal charter to the colony of Connecticut did not in any way affect the Mohegans' ownership of the soil. And given that the colony had violated the tribe's legal rights, the Crown had the jurisdiction to set up a court to adjudicate the matter, the charter rights of the colony notwithstanding.

Following this opinion, the Queen authorized a royal commission to hear the dispute, informing the colony that “complaints have been made to us in behalf of the Mohegan Indians, that you have by an Act or Order of your General Court or Assembly taken from the said Indians that small tract of land which they have reserved to themselves.” In addition to its concern that the colony's law was unjust, the Crown also warned Connecticut that, as war with the French had resumed, its treatment of the Mohegans “may be of fatall consequence by causing a defection of the Indians to our enemies.” As such, the Crown instructed the colony “to pay all due obedience” to its commission, and, if “upon enquiry it be found that the said Indians have been deprived of their lands,” to “immediately cause them to be put into possession thereof . . .”Footnote ⁵⁷

The language the Crown used in establishing the commission indicates that it did not view the Mohegans as subjects, but rather as allies, who, in addition to being the “chief proprietors of all the land in those parts,” had “entertained and cultivated a firm friendship, by league, with our said subjects of Connecticut, and have, at times, assisted them when they have been attacked by their enemies.”Footnote ⁵⁸ However, if the Mohegans were a separate people governed by their own rulers and capable of entering into treaties with the Crown's subjects, they were also, in the words of the Board of Trade, “under your Majesty's Dominion,” which gave them a right to appeal to the Crown for redress.Footnote ⁵⁹

The Crown's decision to proceed by commission was not without precedent. In 1664, a royal commission had heard the complaints of the Narragansett Indians about the loss of their territory to colonial land speculators.Footnote ⁶⁰ Also, the fact that the Crown again authorized a royal commission to hear the dispute between the Mohegans and Connecticut indicates that it viewed the tribe as a separate part of the empire, akin to an English colony, and therefore juridically independent of Connecticut. According to the legal historian Joseph Smith, the Mohegan litigation was analogous to “intercolonial boundary disputes, since the plaintiff tribe was recognized to possess attributes of internal sovereignty sufficient at least to maintain and prosecute an action.”Footnote ⁶¹ Moreover, in the decades preceding the Mohegan case, both the Crown and the settlers acknowledged that Native peoples had the political capacity to enter “into treaties of peace, alliance, and submission.”Footnote ⁶²

The Crown's willingness to grant the Mohegans standing was also a result of its concern that the autonomy of the chartered colonies was detrimental to the empire's struggle against the French for control of North America. For this reason, Crown policy had long sought to revoke the charters of the New England colonies and convert them to direct royal rule.Footnote ⁶³ Although temporarily halted by the settler rebellions following the Glorious Revolution, this centralizing impulse returned during the wars with the French in the 1690s and early 1700s, in which the Crown considered Native allies such as the Mohegans to be vital to the security of the empire.Footnote ⁶⁴ Finding that Connecticut had mistreated the Mohegans thus suited imperial reformers as it gave them a justification for weakening the colony's chartered autonomy.Footnote ⁶⁵

IV

The Crown chose Joseph Dudley, the Governor of Massachusetts, to preside over the royal commission. For years, Dudley had been hostile to what he saw as the excessive autonomy afforded Connecticut by its charter, which had survived the Dominion of New England, and which still featured an elected governor.Footnote ⁶⁶ He was also a strong supporter of the Crown's right to control the colonies' policies toward Native Americans. Indeed, because of the lobbying of both Dudley and Lord Cornbury, the royal governor of New York, Connecticut's dispossession of the Mohegans was one of the charges in the 1706 Parliamentary Bill designed to annul the charters of all of the private colonies.Footnote ⁶⁷

Given the threat to its charter, Connecticut refused to appear before the Dudley commission, claiming that the Crown had no legal right “to enquire and judicially determine concerning the matter in controversy.”Footnote ⁶⁸ Such royal oversight, its lawyers argued, was “contrary to law and to the letters patent under the great seal.” In addition, the colony maintained that the establishment of a juryless royal commission would violate “the known rights of her majesty's subjects throughout all her dominions . . .”Footnote ⁶⁹

On August 24, 1705, the Dudley commission, having heard the case ex parte, unanimously decided in favor of the Mohegans. The commissioners held “that the said Moheagans are a considerable tribe or people . . . and cannot subsist without their lands, of which they have been deprived and dispossessed . . .” Furthermore, Oweneco and his people “have at all times served the interests of the crown of England and the colony of Connecticut” and “have faithfully kept their leagues and treaties with the said colony.”Footnote ⁷⁰ However, the colony, “contrary” to these “reservations, treaties, and settlements,” had “granted away considerable tracts of the planting grounds of the said Moheagans.”Footnote ⁷¹ As a result of the colony's encroachments on their lands, the tribe has “been reduced to great want and necessity, and, in this time of war, are in great danger of deserting their ancient friendship.”Footnote ⁷² Accordingly, the commissioners ruled that the Mohegans “had a very good and undoubted right to a very large tract of lands within the colony of Connecticut.”Footnote ⁷³ And it ordered the colony to return to them the land that Mason had entailed in 1671 between New London and Norwich, as well as several smaller tracts.Footnote ⁷⁴ Upon hearing the verdict, Oweneco pledged that he and his sons would be “ever under the allegiance and government of the queen and crown of England . . .” Captain Ben Uncas, his brother, also thanked the court, claiming that its favorable decision prevented him from “staining his hands with the blood of the English, notwithstanding the many and frequent provocations from them . . .” In reply, the commissioners thanked “the said Indians for their zeal and affection to her majesty, the crown, and the government of England, and the interests of the English nation,” assuring them that “her majesty would always be ready to take care of them and their people, both in protecting them and preserving of their rights and properties.”Footnote ⁷⁵

Following the Dudley commission's adverse verdict, the colony instructed Henry Ashurst, its agent in London, to appeal the decision.Footnote ⁷⁶ A staunch Whig, Ashurst had a long history of defending corporate rights in both England and America. In the 1680s, he opposed the Stuarts' attack on the charters of the boroughs; and, following the Glorious Revolution, he worked with Increase Mather to get a new charter for Massachusetts that preserved some of the colony's old autonomy, albeit under royal governors such as Dudley, for whom Ashurst harboured an intense hatred.Footnote ⁷⁷ In his petition to Queen Anne, Ashurst offered a comprehensive legal argument in defense of the colony, one which it would reiterate for the remainder of the long dispute with the Mohegans. Ashurst first informed the monarch that the colony had obtained the disputed territory from the Pequots by conquest.Footnote ⁷⁸ As he put it: “your petitioners and their ancestors did formerly, with great difficulty, and by their only endeavours, expenses, and charge, acquire, by conquest, the plantation of Connecticut, within the territories called New England, whereby a large addition was made to the dominions of the crown of England.” In conquering the Pequots, Ashurst argued, the settlers “became absolute owners of the lands and plantations of Connecticut.”Footnote ⁷⁹ Furthermore, Ashurst noted, the Pequots had themselves recently “subdued and conquered Unca Sachem, a subordinate tributary chief under him, who had then lately revolted and rebelled.” As a result, Uncas, having been “expelled his government and country,” joined with the English in the wars against the Pequot. According to Ashurst, however, he “served them in no greater station than a pilot to steer their vessels upon waters in those parts.”Footnote ⁸⁰ In return for his assistance, the colony had allowed Uncas and the Mohegans “to possess some part of the said conquered lands, under such terms as your petitioners thought fit.” Ashurst added that the amount of land the colony granted him was small as Uncas barely had “enough to make a hunt.” More importantly, this “reservation” did not mean that Uncas had “any right” to the land, but “only the permission of your petitioners, the conquerors, to suffer him to possess the same.”Footnote ⁸¹

Ashurst also grounded the colony's title to the Mohegans' land on the settlers' labor, arguing that they had “built upon, planted, and greatly improved the said country and plantation . . .” In addition, he claimed title by prescription, noting that the colony has “had the general possession” of the land in question “ever since the said conquest, being now near seventy years since.” As well, many of “the freeholders and planters” have held their individual plots of land “for thirty, others forty, and others fifty years last past.”Footnote ⁸² In addition to conquest, labor, and possession, Ashurst also held that Connecticut had obtained a deed from Uncas granting it the disputed land, save for a smaller amount that the tribe had under cultivation.Footnote ⁸³ However, Ashurst thought that the colony had obtained the deed in order to clarify its title and not because the Mohegans had a legitimate claim to the territory in dispute.

Crucially, according to Ashurst, it was only after the settlers had acquired the land for themselves that the Crown “erected your petitioners into a corporation, and granted and confirmed to them and their successors all the said country or province called Connecticut.” For Ashurst, then, the royal charter merely confirmed pre-existing rights; it did not create them. Moreover, he added, with the Dudley commission very much in mind, the charter gave the colony the final say in “all manner of judicatories for the trial of all causes therein.”Footnote ⁸⁴ In other words, the Crown had no power to grant redress to the Mohegans because Connecticut had ultimate jurisdiction over all legal disputes arising within its chartered boundaries.

Following Ashurst's appeal, the Privy Council overturned the Dudley commission's award of costs to the Mohegans, and granted a commission of review, this time under the direction of Lord Cornbury, who, like Dudley, was hostile to Connecticut's autonomy. However, because of Ashurst's opposition to Cornbury's appointment, this commission never met.Footnote ⁸⁵ But despite its willingness to reconsider Dudley's verdict, the Privy Council upheld the legality of the Crown's jurisdiction over the colony, arguing that because “the Mohegan Indians are a Nation with whom frequent Treatys have been made, the Proper way of Determining the aforesaid Differences, is by her Matys Royall Commission.”Footnote ⁸⁶ The Privy Council's determination that the Mohegans were a “Nation” with treaty rights was an emphatic rejection of the colony's claim that the tribe was subordinate to it. In his year-end letter to the Board of Trade, Governor Dudley seconded the Privy Council's conclusion: “if H.M. cannot grant commissions to hear so apparent a breach between that Government and a Tribe of independent [Indians] . . . that Corporation must be beyond all challenge.”Footnote ⁸⁷

The arguments made before the Dudley commission and to royal officials in London set the intellectual framework for the ensuing debate about the Mohegans' rights. The legal position taken by the Mohegans and their English allies depended upon the tribe's original “Hereditary Right,” which had survived contact with the English and the granting of a royal charter.Footnote ⁸⁸ In addition, they held that the colony had made several treaties and agreements with the tribe, all of which it had broken. For its part, the Crown agreed that the Mohegans were politically independent from the colony, although under the dominion of the Crown. As a result, the colony's ability to take Indian land was legally limited and subject to the higher authority of the Privy Council in London. In its appeal, the colony based its claims to the disputed territory on conquest, improvement, possession, and Native grant, all of which were confirmed by the royal charter, and underpinned by the rights of Englishmen throughout the empire to freehold property.Footnote ⁸⁹

V

In part because of Ashurst's appeal and the subsequent decision of the Privy Council to set up a commission of review, the judgment of the royal commission in favor of the tribe was never executed.Footnote ⁹⁰ Instead, the towns that had been founded on the Mohegans' reserved lands continued to expand. Samuel Mason, on the winning side in the case, found himself politically isolated. The nadir of the Mason family's fortunes came in 1711, when John Mason, Samuel's nephew, surrendered the family's rights to the land that Captain Mason had entailed for the tribe in 1671.Footnote ⁹¹ And in 1718, the colony removed John Mason as the tribe's legal guardian, appointing in his stead others who promised to Christianize the Mohegans, funding this proselytization from the sale of their lands.Footnote ⁹²

The Mohegans' power also declined in the decades following the Dudley commission's verdict. Before his death in 1715, Oweneco continued to sell tribal lands to the settlers, further reducing the amount of land under the Mohegans' control.Footnote ⁹³ In 1718, hoping to reverse the loss of their territory, the Mohegans petitioned the General Court, complaining of “entries, made upon the said land, and damage sustained by them in their fields.”Footnote ⁹⁴ Desiring to forestall another appeal to the Crown, the colony appointed a commission of its own to settle definitively the Mohegans' land claims. In 1721, this commission awarded the colony title to the bulk of the “sequestered lands,” apart from 4,000–5,000 acres that it set aside for the Mohegans.Footnote ⁹⁵ But even this small set-aside came with an important qualification, the colony promising that it “shall for ever belong to the Moheagan Indians,” but only “so long as there shall be any of the Moheagans found or known of alive.” However, “when the whole nation, or stock of said Indians are extinct, and none of them to be found,” the colony decreed, “the said eastern part, which is now settled upon the Indians, shall for ever belong to the town of New London, as their full, free, and indefeasible estate in fee.”Footnote ⁹⁶

In addition to dispossessing the Mohegans, the colony left the Masons with no chance of recompense for the legal costs incurred before the Dudley commission in 1705. As a result, in 1722, John Mason appealed to the General Court for redress, but was unsuccessful. In 1725, he presented a second petition asking that the decision of the Dudley commission be enforced, and that he be compensated. The colony once again refused to oblige, noting that Mason had been compensated in 1711 for renouncing his interest in the disputed land. The colony did, however, allow Mason to settle on the Mohegans' remaining lands, and once again take charge of their affairs. But the colony's concession did not temper Mason's sense of grievance. Instead, the growing discontent of the Masons and the Mohegans led to several more decades of legal and political conflict.Footnote ⁹⁷

VI

Soon after John Mason came to live among the Mohegans, he became involved in a dispute over who was the tribe's legitimate sachem. Following Oweneco's death, Caesar, the youngest son of Uncas, became sachem, as Mahomet, the real heir, was too young. However, when Caesar died in 1723, Mahomet was pushed aside by Uncas' illegitimate son, Ben. And when Ben died in 1726, his son, also called Ben, replaced him. This usurpation led to intra-tribal strife as Mahomet struggled to reclaim the sachemship. Mason, desiring to re-start the legal case, backed Mahomet, which led Ben Uncas to side with the colony. Although the majority of the Mohegans supported Mahomet, the colony continued to maintain that Ben Uncas was the legitimate sachem, and, further, that it had the right to insist that the tribes' leaders be amenable to colonial interests.Footnote ⁹⁸

In order to get the Dudley commission's verdict enforced, John Mason and Mahomet travelled to London in 1735 where they petitioned the Crown for another royal commission. Although successful, they paid a high price, both men dying in England before the commission met.Footnote ⁹⁹ The new commission, which convened in 1738, was composed of the Governor and assistants of Rhode Island, along with two members of the New York council, Daniel Horsmanden and Philip Cortlandt. William Bollan, the advocate general of Massachusetts, and William Shirley, Bollan's patron and future governor of Massachusetts, represented the Mohegans and the Masons. Like the members of the earlier Dudley commission, both men were hostile to the autonomy enjoyed by the chartered colonies, and believed that better treatment for Native Americans loyal to the Crown was necessary for the defense of the empire against the French.Footnote ¹⁰⁰ However, the advocacy of Bollan and Shirley was in vain as the Rhode Island commissioners, predisposed to support a fellow chartered colony, deemed Ben Uncas to be the rightful sachem, ignoring the claims of John Uncas whom the majority of the tribe had chosen upon hearing of Mahomet's death in London.Footnote ¹⁰¹ The commissioners then accepted Ben Uncas' decision to release the colony from all claims made by the Mohegans. They also refused to admit the evidence taken by the Dudley commission in 1705. As a result, the New York councillors, Horsmanden and Cortlandt, resigned from the commission in protest, complaining to the Board of Trade that the “constitution of the tribe” decreed that John Uncas, Mahomet's successor, was “sachem de jure.”Footnote ¹⁰² In their absence, the Rhode Island commissioners overturned the Dudley commission's verdict and granted the bulk of the Mohegans' land to Connecticut.Footnote ¹⁰³

In June 1739, the Mohegan tribe, along with John and Samuel Mason (the sons of John Mason who had died in London) appealed the decision of the Rhode Island commissioners. The Masons argued that the 1738 commission was “Unjust, Illegal, Null & Void,” and urged the Crown to uphold the Dudley commission's verdict, which, they claimed, was “a New Treaty in effect,” the Mohegans agreeing to live under “the Allegiance and Government” of the Crown, and the Crown promising to take “great care of the said Sachem and his people . . .”Footnote ¹⁰⁴ The Mohegans made a separate petition to the Crown about the decision of the 1738 commission, complaining that “We made our Appearance in a Body, and we were denyed to be heard.” Instead, Connecticut set up an “Impostor as Sachem” who was “made by said Government” to “evade Justice” and “to Deprive us of our Lands . . .” As a result of this injustice, the tribe claimed that they were now “Exposed to the Utmost Limits of Poverty and Want . . .”; and they asked the Crown to “receive us under your Protection” and “Restore us to our Lands and Libertys.” Unlike the assertion in the Masons' petition, however, the Mohegans did not claim to be subjects of the Crown, nor under its government or allegiance; rather, they continued to see their relationship to the Crown as a reciprocal one, rooted in alliance and friendship.Footnote ¹⁰⁵ After hearing these petitions, the Privy Council determined that the case should be heard again on the grounds that the proceedings of the 1738 commission had been “very irregular.”Footnote ¹⁰⁶ In January 1743, George II set aside its verdict and issued a new commission, this time to be drawn from the lieutenant-governor and councillors of New York, and the governor and councillors of New Jersey.Footnote ¹⁰⁷

VII

The commission that convened in Norwich in the summer of 1743 was the first to hear evidence from both Connecticut and the Mohegans.Footnote ¹⁰⁸ Philip Cortlandt and Daniel Horsmanden, who had walked out of the 1738 commission in protest at what they felt was unfair treatment of the Mohegans, returned, and were joined by Cadwallader Colden, a powerful figure in New York politics; Robert Hunter Morris, the chief justice of the New Jersey Supreme Court; and John Rodman. Although several of the commissioners had been involved in disputes over Native lands in New York and New Jersey, they were less obviously biased in favour of either the Mohegans or the colony than the members of the 1705 and 1738 commissions had been.Footnote ¹⁰⁹ William Smith, an eminent lawyer from New York with a long history of opposition to chancery courts, represented Connecticut before the commission.Footnote ¹¹⁰ And William Bollan, who had defended the Mohegans before the ill-fated 1738 commission, was also back to make their case again, although this time without the help of his patron, William Shirley.

At the outset of the trial, William Smith attempted to have the commissioners recognize Ben Uncas as the legitimate sachem. When this procedural tactic proved unsuccessful, he proceeded to the merits of the case, making similar arguments to those that Ashurst had used in his appeal of the 1705 royal commission decision.Footnote ¹¹¹ According to Smith, the English settlers who came to Connecticut in 1636 “had formed themselves into a small government.” Following this, they “had gone through a war with the Pequots, and conquered them.” In this endeavour, Uncas, “who was accounted a Pequot and lived at Moheagan,” and the English “cultivated” a “friendship.” As a result, the English “treated” the Mohegans “as a distinct people,” with Uncas as the first sachem.Footnote ¹¹² In the aftermath of the war, Uncas deeded all of the territory he controlled to the colony, apart from what he had already “planted” and “improved.”Footnote ¹¹³ For Smith, then, the conquest of the Pequots and the subsequent deed from Uncas had ensured that “English subjects became seised and possessed of all the lands within the said Uncas's claim and right, saving the said lands reserved in and by the aforesaid grant, which was but a small quantity.”Footnote ¹¹⁴

According to Smith, however, Connecticut was concerned that these “reserved lands” were “very uncertainly described in the deed aforesaid.” As a result, in 1659, the settlers, who were “desirous of having the native Indian right” to the “whole of Uncas's claim,” got Major John Mason, “a principal member in and of their government,” to obtain a further deed from Uncas. Once this had been done, Mason then “conveyed to the colony of Connecticut those lands that the said Uncas . . . had granted to him”Footnote ¹¹⁵ By this act, “the Indian Sachems, and their people,” in return for “planting ground” and a farm for Mason, “agreed . . . to hold their lands . . . possess, or improve, from and under the English.”Footnote ¹¹⁶ The colony then petitioned the King for a charter “to be incorporated, with powers of government, and for his majesty's grant and confirmation of those lands obtained by Indian purchases and conquest as aforesaid.”Footnote ¹¹⁷ By taking possession of this territory, Smith argued, the settlers had “made a considerable enlargement” to “the dominion” of the Crown.Footnote ¹¹⁸

In addition to conquest and purchase, Smith grounded the colony's rights to the disputed land on labor and possession. As he argued before the commissioners: “many people in this colony have . . . made improvements on divers parts of the lands . . . brought into question by this suit.” Furthermore, they “have lived and spent there days thereon,” some for upwards of “seventy years.” If they were now to be dispossessed by the Crown, it would result in “the demolishing of many Christian churches, and depopulating a considerable part of the colony, and turning it once again into a wilderness . . .”Footnote ¹¹⁹

Not surprisingly, given his account of the early relations between Connecticut and the Mohegans, Smith argued that the 1681 treaty was not a binding agreement between sovereigns, but was rather a concession “to the prejudiced opinion of the said sachems.” Under its terms, the colony paid again for land it already owned, promising to “take care that a sufficiency of lands” should “be reserved” for the tribe “to plant on,” and that a “just price should be paid for the residue.”Footnote ¹²⁰ Given that “whatever lands were at first reserved by the said Indians” had been “conveyed” to “the English subjects” decades before the Dudley commission met, Smith concluded that its verdict “was without any just foundation” and “ought to be reversed, and made null and void.”Footnote ¹²¹

The Mohegans were once again represented before the 1743 commission by William Bollan, who crafted a powerful defence of the tribe based on their autochthonous rights.Footnote ¹²² Echoing the arguments that Oweneco had made to Queen Anne, Bollan claimed that the Mohegans “were the original only owners of a large tract of land in these parts.” And when the English arrived, the Mohegans had “received and entertained them as friends, and entered into a strict alliance with them.” This was an alliance, Bollan insisted, that the Indians had, despite “the severest trials,” “at all times observed and kept.” Furthermore, “in order to promote the settlement of the English,” the Mohegans had “from time to time spared them divers parcels of their lands,” save for “the lands in controversy (a small portion compared to what they owned when the English first settled here).” However, having “admitted the English to settle in their country,” the Mohegans found some of them to be “full of craft and guile” and so had made an alliance with John Mason and his family “to prevent their being cheated by any fraudulent or unfair purchase.” By doing so, Bollan insisted, they hoped to preserve “a sufficient portion of lands for them to plant and hunt in, which were absolutely necessary for them, in order to their continuance as a people.”Footnote ¹²³

In return for this protection, Uncas entrusted the tribe's land to Mason in 1659, a transfer that was confirmed by several deeds in the following decade. In doing so, the sachems promised never to “dispose of” these lands without “the consent and allowance” of “Major Mason, his heirs and successors.” And in 1671, Mason returned the favour by entailing a tract of land between Norwich and New London for Uncas and his heirs.Footnote ¹²⁴ The Mohegans' claim to these lands was strengthened, Bollan argued, by the 1681 treaty, which he called a “league of perpetual peace and friendship.” According to its terms, “the Moheagans [sic] propriety in lands, and their having countries and territories” was “directly acknowledged by the said colony.”Footnote ¹²⁵ As such, it would be a great “injustice” if the colony were now to “depart from their treaties with their old and constant friends and allies.”Footnote ¹²⁶ In construing the terms of the treaty, Bollan also urged the commissioners to understand it from the Mohegans' perspective. According to Bollan, “the Mohegans beg leave to observe, that they are a people unskilled in letters.” Also, “their adversaries have had the penning this treaty, and all the records of their other transactions with the said Indians.” As Connecticut “doubtless took care to express matters favourably to their own interest,” Bollan urged the commissioners to put “the most favourable construction for the said Indians . . . upon these writings.”Footnote ¹²⁷

For Bollan, the political autonomy that enabled the Mohegans to sign binding treaties was necessary in order for them to protect their “antient territories.”Footnote ¹²⁸ As Bollan reminded the commissioners, the Mohegans “are a free and independent people” who are governed by an “ancient established constitution.”Footnote ¹²⁹ Moreover, Bollan insisted that the Mohegans' “policy, customs, and manners differ widely from those of the English (which they neither despise nor can approve) so they, by no means, like to be so mingled with them, which the Indians find, by experience, has a direct tendency to drive them away from their ancient possessions.”Footnote ¹³⁰ Indeed, Bollan contended that when the two peoples first met in the 1630s, it was the settlers and not the Mohegans who lacked a polity. Given that the settlers were effectively stateless until the grant of the charter in 1662, Bollan argued that there could have been no valid land transfers between them and the Mohegans prior to that time. As he told the commissioners, “it is impossible any lands should pass to them by force of any conveyance whatsoever, until they were enabled . . . by the incorporation of their prince.”Footnote ¹³¹ And in response to Smith's claim that the royal charter had vested the Mohegans' lands in the colony, Bollan once again adopted an indigenous perspective. As he explained to the commissioners: the “Indians say that surely that prince, when he granted a charter to some of his own subjects, never intended thereby to pass to them the lands of his friends and allies.” After all, “If the English colonies be permitted” to “depart from their treaties . . . the Moheagans cannot but say, that the English interest must finally suffer among the Indian nations . . .” For Bollan, then, the only effect of the royal charter was “to make such of their lands become part of the English colony as should from time to time be fairly purchased of them.”Footnote ¹³²

VIII

Although Connecticut did not contest the legitimacy of the 1743 royal commission, the settlers whose property was on the disputed land contended that it did not have the authority “to determine upon their right and titles to their respective freeholds.” After all, they claimed, “each of them . . . doth hold the land in his respective possession, by virtue of lawful Indian grants or purchases for good and valuable considerations paid to the native Indians.”Footnote ¹³³ In addition, they contended that the royal commission was “illegal” as “each of them are freemen, natural born subjects of the Crown of Great Britain.”Footnote ¹³⁴ As such, the Crown had no right to call their freeholds “into question in a course of equity.” To do so, they argued, “would be . . . contrary to the laws and statutes of that part of Great Britain called England and the laws of this colony,” all of which constituted their “undoubted birthright and inheritance.”Footnote ¹³⁵

The settlers' objection to their jurisdiction forced the commissioners to make an interim ruling on whether they could in fact sit in judgement on the property rights of English subjects, which in turn led them to a consideration of the political status of the Mohegans. Daniel Horsmanden argued forcefully that the tenants should be subject to the commission's jurisdiction because “the Indians, though living among the king's subjects in these countries, are a separate and distinct people from them.” After all, Horsmanden noted, “they have a polity of their own” and “they make peace and war with any nation of Indians when they think fit, without controul from the English.” Furthermore, according to Horsmanden, the “crown” in both “queen Anne's and his present majesty's commission by which we now sit” “looks upon them not as subjects, but as a distinct people” who have “the property of the soil of these countries.” For Horsmanden, therefore, a matter between “the Indians a distinct people (for no act has been shewn whereby they became subjects) and the English subjects, cannot be determined by the laws of our land.” Instead, Horsmanden insisted, the issue must be tried “by a law equal to both parties, which is the law of nature and nations; and upon this foundation, as I take it, these commissions have most properly issued.”Footnote ¹³⁶

Cadwallader Colden disagreed with Horsmanden on the question of the commission's jurisdiction over the tenants, and thus on the political status of the Mohegan.Footnote ¹³⁷ As he put it: “I can in no manner consider the Moheagan Indians as a separate or sovereign state, or that either Ben Uncas or John Uncas are in any sense sovereign princes.” “Such a position in this country,” Colden argued, “where the state and condition of the Indians are known to everybody, would be exposing majesty and sovereignty to ridicule.” Rather, he held that “every one of the Mohegan nation, are born under allegiance to the crown of Great Britain . . .” Colden did not feel that he was doing the Indians “any injury . . . when I allow them to be subjects of Great Britain,” for they would then enjoy “the benefit and protection of the English law, and all the privileges of British subjects.”Footnote ¹³⁸ In denying the Mohegans' claims to be a separate people, Colden intended to limit the jurisdiction of the commission to the corporation of Connecticut, preventing it from subverting “the right of freehold or inheritance of any particular persons, and to evict them out of the same . . .”Footnote ¹³⁹

Colden's arguments did not persuade a majority of the commissioners who dismissed the landholders' plea, thereby denying that either the common law rights of individual colonists or the charter were a barrier to the Crown's jurisdiction. This interim ruling meant that a majority of the commissioners believed the Mohegans were an independent part of the empire, juridically separate from Connecticut, although they did not necessarily endorse Horsmanden's strong claim for the tribe's sovereignty.Footnote ¹⁴⁰ In so doing, the majority were in agreement with the Privy Council's rulings in 1704, 1706, and 1738 that the Crown had a right to hear an appeal from the Mohegans and to provide them restitution, including, if necessary, the return of the property of individual colonists to the tribe.

But despite this interim ruling asserting the Crown's jurisdiction over the colony, a narrow majority of the commissioners ultimately decided against the Mohegans' right to the bulk of the land in question, save for what had been set aside for them by Connecticut in 1721. Although they conceded that the Mohegans were the original owners of the land in question, the commissioners held that Uncas had deeded the land to the nascent colony in 1640, and again to Mason in 1659.Footnote ¹⁴¹ As the deputy governor, Mason had then granted these lands to the government in 1660 to support its petition for a royal charter. In return, the colony had guaranteed the Mohegans “a sufficient quantity of lands to plant on.”Footnote ¹⁴² In 1662, the King granted Connecticut a charter that gave the “governor and company a large tract of land in America, including all the Mohegan lands, in controversy.”Footnote ¹⁴³ As a result of these transactions, the commissioners held that the Mohegans were left with only “an equitable right to a quantity of lands sufficient for their subsistence by planting.”Footnote ¹⁴⁴ It followed from this that Mason's 1671 entailment of the disputed land was legally invalid. The commissioners also dismissed the binding nature of the 1681 treaty, holding that the colony signed it “without any impeachment to their former right” because “one of the parties to that treaty were Indians, a barbarous people, not then subject to the regular course of any law, easily misled by misapprehensions, and as easily provoked to violent mischievous actions . . .”Footnote ¹⁴⁵ Even though the treaty was not legally binding, the colony had, according to the commissioners, respected its terms and made “reiterated purchases . . . of ALL the lands in controversy, excepting those which the said Indians still possess.”Footnote ¹⁴⁶

However, the commission's decision was by no means unanimous.Footnote ¹⁴⁷ Not surprisingly, Daniel Horsmanden “found great reason to differ from other commissioners in opinion upon the merits.”Footnote ¹⁴⁸ According to Horsmanden, the 1659 deed between the Mohegans and the Masons was “a trust, reposed by the Indians in Major Mason.”Footnote ¹⁴⁹ Moreover, when Mason in turn transferred this land to Connecticut in 1660, the colony's assembly “understood it to be a trust; and that, by the surrender of the jurisdiction power over the land, nothing more could be meant by the parties to that transaction, than to enlarge and extend the dominions of the English colony.” The deed was not, Horsmanden insisted, “intended . . . to pass or convey away the soil to the said colony.” Instead, the colony only gained “the right of pre-emption” to “such lands as were within the said district or territory so conveyed to Major Mason.” Furthermore, this “right of pre-emption” could only lead to a legal title if “the Indians, by the advice of the Major and the male heirs of his family (on whom the trust was thereby intended to descend)” were willing to sell their land to the colony.Footnote ¹⁵⁰

Robert Hunter Morris joined Horsmanden in his dissent. According to Morris, the Mohegans had never intended to convey the “absolute property” in their land to the colonists, “but only to vest them with the sole right to purchase these lands.” As such, Mason's “surrender” to the colony of the land Uncas had entrusted to him in 1659 was not a grant of “the property of the soil”; rather, it was solely designed “to give the English colony on Connecticut a right to exercise their powers of government over the lands conveyed to Mason . . .”Footnote ¹⁵¹ Although the final judgment was signed by all of the commissioners, Horsmanden and Morris reserved their right to dissent when the commissioners met again in the fall of 1743. However, when they reconvened, representatives of the colony prevented Horsmanden from entering his protest on the record, whereupon he vowed to transmit his case directly to the “lords commissioners for trade and plantations.”Footnote ¹⁵² Over the objections of the colony, the Mohegans informed the commissioners that they, too, were going to appeal the decision. The Masons vowed to do the same. As a result, the case dragged on in a desultory fashion for several more decades. When it was finally heard again by the Privy Council in 1773, the imperial authority that had made possible the Mohegans' quest for justice was on the verge of collapse, rendering the final judgment moot.Footnote ¹⁵³

IX

That the Mohegan case ended on a dissonant note is emblematic of the contested nature of Native American rights in the eighteenth-century British Empire. Far from there being an Anglo-American consensus in favor of dispossession, the Mohegans were repeatedly able to get a hearing before the highest court in the empire, even though by the time they first appealed to the Crown they were living on what was in effect a reserve entirely within Connecticut's borders. And out of the subsequent litigation, three broad accounts of their legal status emerged. The colony's lawyers built their case against the Mohegans on conquest, which, they claimed, conveyed full title to the disputed lands to Connecticut. As a consequence, the Mohegans were not only dispossessed but also subordinated to Connecticut's jurisdiction. However, out of a concern for the Mohegans, the colony claimed that it had also purchased the land from them, always being careful to set aside sufficient territory for the tribe to hunt and plant on. Having obtained title by conquest and purchase, the colony's lawyers argued that the settlers had then labored on the land, making improvements to it that had strengthened their claim. They also invoked prescription, noting that by the time the case was litigated, the Mohegans' land had been occupied by the English for many years.

The consistency of the colony's arguments over many decades indicates the emergence of a coherent and sophisticated account of the rights of settlers in the eighteenth-century empire, able to justify dispossession by drawing on older arguments from conquest and purchase alongside newer claims based on labor and improvement. In this view, the rights of the settlers in Connecticut did not depend upon the grant in the royal charter. Rather, they had earned their autonomy by making war on the Natives and then by transforming what they had conquered into private property under cultivation. Seen in this light, Connecticut's legal stance in the Mohegan case amounted to a claim for territorial sovereignty under nominal Crown oversight, with royal officials having no right to interfere with the colony's authority over indigenous lands or persons within its chartered boundaries.Footnote ¹⁵⁴

By contrast, Oweneco and his descendants contended that they had an autochthonous right to the lands in dispute that had not been transferred to the colony by conquest, purchase, or the granting of a royal charter. Bollan, their lawyer before the 1743 royal commission, expressed this indigenous perspective best when he stated that the Mohegans were a free people with ancient rights, including the right to live under their own laws and on their traditional territories.Footnote ¹⁵⁵ In appealing to the Crown for justice, the Mohegans did not accept the status of subjects; rather, they repeatedly insisted that they were friends and allies of the English who had made a series of agreements with the Mason family in order to safeguard their territory from the colony. They had also signed a treaty with Connecticut, the terms of which guaranteed them land sufficient for their continued existence as a people. When this agreement was violated, they appealed to the Crown for justice, invoking their inherent rights, and insisting on what was in effect a federated relationship to the imperial center, one that was entered into voluntarily, and that allowed them to retain their autonomy as part of the empire's composite polity.

The Crown and its agents were divided on the extent to which the Mohegans had property rights or political autonomy. Although a bare majority of the commissioners in 1743 decided against the Mohegans' claim to their traditional territories, disregarding the treaty the tribe had signed with Connecticut, they did so on the grounds that the tribe had in a series of deeds or cessions transferred their territory to the colony, who had in turn set aside what it deemed a sufficient amount of land for them. By stressing that the tribe had voluntarily relinquished their title, the commissioners were acknowledging that the Mohegans had originally owned the land in dispute. Moreover, they never accepted Connecticut's claims that the land in question was conquered territory. And by siding with the tribe against the landholders in the interim ruling, a majority of the commissioners in 1743 held that the Mohegans were a separate component of the empire, although subject to the Crown's overarching authority.

In doing so, these commissioners were in agreement with the attorney general and the Privy Council in 1704, Governor Dudley and the other members of the 1705 commission, and the Privy Council in 1706, all of whom had held that the Mohegans were “a Nation,” with the capacity to enter into treaties in order to protect their territorial integrity from the colony's usurpations.Footnote ¹⁵⁶ Indeed, even the 1738 commission, despite its lack of due process, recognized that the Mohegans had a constitution that allowed them to determine who their sachem would be. Therefore, despite the fact that the 1743 commission ruled against the Mohegans' claim to the bulk of their territory, the case taken as a whole indicates that the Crown recognized indigenous property rights and political autonomy, albeit with some equivocation as to whether they were like English subjects who had the right to govern themselves under its ultimate sovereignty, or, as both Horsmanden and the tribe itself insisted, fully independent allies.Footnote ¹⁵⁷

X

This analysis of the legal claims advanced in the Mohegan case provides a more nuanced picture of the debates about indigenous rights in the eighteenth-century Anglo-American world than the current scholarly consensus on the centrality of arguments for dispossession, a consensus derived largely from the writings of prominent European and English theorists.Footnote ¹⁵⁸ In the Mohegan case, by contrast, none of the litigants contended that the New World was a legal vacuum, its inhabitants lacking property rights and political capacity. Rather, there was an intra-imperial disagreement about the legitimacy of Connecticut's acquisition of Mohegan lands. The majority of royal officials who adjudicated the case recognized that the Mohegans were the original owners of the land in question, thus having the ability to alienate it; and, further, that the tribe had the political capacity to enter into treaties with subjects of the Crown. By contrast, Connecticut treated the tribe as its tributary, arguing that it lacked political autonomy, as well as any title to territory independent of its grant. But in claiming title by conquest and purchase, it too recognized that the disputed territory had once had indigenous owners.Footnote ¹⁵⁹ In making its case for dispossession, the colony's lawyers combined these arguments with a claim that the settlers had also established superior rights to the land by improvement and prescription.Footnote ¹⁶⁰

The centrality of conquest to Connecticut's case against the Mohegans indicates that it continued to be a powerful legal argument in the Anglo-American world in the eighteenth century.Footnote ¹⁶¹ The fact that Connecticut drew on several different justifications for dispossession also suggests that future scholarship on imperial ideologies needs to pay more attention to what Lauren Benton and Benjamin Straumann have recently called “the creative combination of legal arguments by imperial agents.”Footnote ¹⁶² Such an approach would examine the extent to which those involved in making imperial claims both within and between empires drew freely on municipal law as well as on transnational discourses such as Roman law and natural law. That Crown and colony differed so vociferously about the Mohegans' rights also means that future scholars should pay more attention to which person (or institution) was making claims within each European empire rather than assuming (as scholarship in the Anglo-American world has largely done) that there was a widely-held English or British theory of dispossession.Footnote ¹⁶³

If the Mohegan case complicates our understanding of the arguments about dispossession in the British Atlantic world, it also suggests that we need to incorporate the ideas of the indigenous peoples themselves into our accounts of these early modern debates, while recognizing the ways in which their agency shaped imperial politics. Stymied by Connecticut in the aftermath of King Philip's War, the Mohegans appealed beyond New England, becoming, like other Native Americans in the eighteenth-century empire, political actors in the larger Atlantic world.Footnote ¹⁶⁴ Moreover, their insistence on appealing to the Crown turned a provincial dispute into one in which the colony's chartered rights were brought into question. And the subsequent struggle for authority in the empire led to a trans-Atlantic disagreement on the nature of indigenous rights. The Crown's desire to rein in Connecticut's chartered autonomy gave its officials an interest in contending that the Mohegans had property rights, and, more importantly, political autonomy. In response, Connecticut had to deny the Mohegans the independent political status that the Crown had accorded them. In doing so, the colony argued that its autonomy in the empire had been gained at the expense of the Mohegans, who were now a tributary people, subject to its authority, and one day destined to become extinct.

The Mohegans' repeated claims for political autonomy also mean that the debate over indigenous rights in the eighteenth-century British world was about more than just the ownership of land. Indeed, if the Mohegan case is at all typical, property rights and political capacity were intertwined, for whichever group—the settlers or the Natives—could successfully assert its status as a polity was also likely to be the one in control of the distribution of land under their jurisdiction.

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In the years following the 1743 commission ruling, the tensions in the Mohegan case between the Crown and quasi-autonomous colonies bent on turning Native land into private property were magnified on a continental scale. Facing another cycle of wars against the French, royal officials began to think about Crown policy toward Native Americans in a concerted way for the first time. Following the breaking of the Covenant Chain, the long-standing alliance with the Iroquois, the Crown appointed two superintendents to oversee all trade, diplomacy, and land cessions between Natives Americans and the British, matters that had previously been under the control of individual colonies such as Connecticut.Footnote ¹⁶⁵ And in the wake of the Seven Years' War, and the Native American rebellion led by Pontiac in the Great Lakes region, the Crown issued the Royal Proclamation of 1763, which forbade all westward settlement beyond the Appalachians.Footnote ¹⁶⁶ The Crown's attempts to restructure the empire and provide some protection for Native Americans provoked opposition in the colonies based on a conception of liberty which, like the arguments made by Connecticut in the Mohegan case, denied Native American rights in order to secure those of the settlers.Footnote ¹⁶⁷ The stakes were made clear by William Samuel Johnson, Connecticut's agent in the late 1760s, as the Mohegans were making their final appeal. According to Johnson, the “Spirit” of the Mohegan case may lead “all the Indians in America to make claim & introduce the utmost confusion and mischief.”Footnote ¹⁶⁸ So, as the tensions that were to culminate in rebellion escalated in the 1760s and 1770s, the authority of the imperial center was once more pitted against the desire of the settlers to expand their property holdings westward. This time, however, the outcome would affect all of the Native American peoples of North America, as the settlers who held power in the new republic would prove less tolerant of indigenous rights than the Mohegans had found the old empire to be.Footnote ¹⁶⁹