CHAPTER I
EUROPEANS AND THE NEW WORLD
Discovery of the New World shook the foundation of Old World jurisprudence and initiated a movement to establish a body of international law. For centuries Europeans had lived with a makeshift edifice of political theory that fluctuated between a recognition of the divine right of kings and an admission that dynastic struggles presented the continent with a political fait accompli that could only be endorsed and sanctified by the Catholic Church. In the limited conceptual universe of fifteenth-century Europe, this arrangement was accepted because there was no reason to believe that the world was any larger than Europe and the remote places of which Europeans had knowledge. Columbus’s voyages considerably expanded these limited horizons and made it necessary that Europeans find a way of understanding the world in its totality. Who were the people living on the other side of the ocean, and what relationship did they have with Europeans who at the time of discovery shared, if nothing else, a universal belief in the Christian interpretation of the world and of human history?
The Catholic Church was quick to respond to this intellectual dilemma; in the spring of 1493 the Pope issued the famous bull Inter Caetera,1 in which the Church granted to the kings of Castile and Leon all the lands and countries the Spanish had discovered or might discover in the future. The lands, of course, were not the Pope’s to grant, but in the European mind of the time the Holy Father was understood as Christ’s vicar on earth, and hence if any authority existed to bolster European political claims against the peoples of the New World, it would have to be found in a religious context. The Church’s purpose for granting an undetermined portion of the earth to a minor European country was to ensure that the gospel be preached to all nations—and the Spanish were expected to do precisely that. Very quickly the Spanish composed a legalistic document, the Requerimiento,2 which was to be read to the indigenous groups of the New World as they were contacted by Spanish explorers. The Requerimiento recited the history of the world as Europeans then understood it and called upon the natives to submit themselves to the authority of the Spanish monarchs and the Pope or face the “justifiable” wrath of the Spanish military. No people go to war or seek to divest others of life and property unless they have devised a moral justification for their actions; the Requerimiento became the Spaniards’ legal and moral excuse for dispossession of the indigenous peoples of the New World. It also provided the intellectual context within which international law began to develop.
The subsequent debates among Spanish theologians regarding the nature of the natives (whether or not they were by nature free persons or slaves), the seemingly endless series of papal bulls that sought to refine and clarify the rights of Europeans in newly discovered lands, and the correspondent responsibilities Europeans assumed in making claims against the indigenous peoples need not concern us here.3 What is important to note is that the doctrine of discovery, as the papal franchise came to be called, was cited by European monarchs as justification for claiming a clear legal title to lands in the New World on the basis of the fact that the monarch had authorized certain adventurers to search out new lands on his or her behalf. With the exception of the Spanish, who made conversion an integral part of their colonial activities, most of the European sovereigns laid claims to lands in the New World without accepting the corresponding responsibility to spread the gospel to the natives. Discovery thus became a secular, legal theory that was of benefit only to the European countries. Since the natives were not Christians, they were precluded from legally defending themselves or forcing the Europeans to recognize their rights to their lands.
In the struggle for North America, England was generally the victor, although both France and Spain maintained the fictional posture that they owned portions of what is now the United States—even after the American Revolution. After the Seven Years’ War (1756–1763), Great Britain stood alone on the eastern seaboard, and France was able to argue a presence in North America only by the secret device of ceding most of Louisiana to Spain just prior to making peace with England. Spain had settled portions of the Florida, Georgia, and Carolina coasts but lacked the will and resources to defeat the troublesome Creek and Choctaw nations, so it contented itself with establishing favorable trading relationships with the southeastern Indian tribes. Spain faced no competition in the American Southwest or on the California coast in its claims to those territories.
Since the English had been substantially dependent upon the Indians, particularly the Iroquois Confederacy, in defeating the French, they wisely recognized the national status of the major Indian tribes of the interior and generally forbade their colonies from dealing with the Indian tribes on any consistent or substantial basis. In 1763 the King established via a royal proclamation a boundary line running along the Allegheny Mountains beyond which English colonists were forbidden to go. The king also organized departments of Indian affairs that were responsible primarily to the Crown and its advisors—not to the colonial governments. The English treatment of the natives had something of the flavor of the original papal intent, in that private contributions toward the conversion and civilization of the natives were encouraged. But commerce rather than Christianity dominated English colonial concerns.
The fathers of the American Revolution and Constitution had a definite English heritage insofar as they understood the nature of their Indian relationships. First, there was no question that they believed they owned the clear legal title to the lands of the continent they had wrestled away from Great Britain. Second, they recognized the wisdom of the English propensity to treat the larger Indian confederations as having recognizable and respected national status. Indians who were not accorded the respect to which they believed they were entitled did not fight as allies and were likely to appear in battle on the other side of the line.
In the negotiations of peace concluding the Revolutionary War, the British insisted that the territory between the old proclamation line (roughly the Ohio river) and the Great Lakes be designated as the Indian country with the thought that it would provide a buffer state between the United States and Canada. Apart from the Kentucky bluegrass country, which Daniel Boone and James Henderson had already invaded, Americans coveted nothing as much as the annexation of Canada, and with that area predominantly French, Great Britain was walking something of a tightrope in securing its remaining North American possessions. As one of the last points to be discussed during the treaty negotiations, England finally acceded to American demands and left the status of this area—and of its inhabitants—unresolved and nebulously described in the document ending the war.
A curious situation then developed. Many northern tribes in the area west of the Mississippi and north of the Illinois River drew closer to the English, even though the fur traders they encountered were French, half-breed French, and eastern Indians. These loyalties persisted until the War of 1812, and many American explorers and traders arriving at Indian villages in Minnesota, Wisconsin, and on the upper Missouri River were surprised to find the British flag flying over their heads. Thus American flags and peace medals from the president became part of the American fur trade and diplomatic encounters.
Finally, there was no question that the Americans believed the Indians were heathen savages who had little to recommend them and who, if they were to live near or among white settlements, needed to be transformed into “civilized” human beings. Indeed, while still in its early colonial phase, Massachusetts divided its Indian population into wild tribes and converted Indians who lived in “Praying Towns,” which received a measure of political status and self-government according to Puritan views of these matters.4 Since Indians truly did not understand Anglo-Saxon property law and were otherwise benign and trusting according to their own habits, Americans began to think of them as children needing firm guidance in their business transactions—hence the idea of the colonial or state government acting as a trustee to ensure fair treatment. It was not long before the idea developed that the non-Indian governments—at all levels—should sell Indian lands to settlers at reduced prices as an exercise of the trusteeship. In “civilizing” the Indians, tribal lands of vast acreage were declared “surplus,” and land holdings were reduced to small plots where Indian families were expected to live like their white neighbors.
The heritage of the European/Euro-American claim of legal title to Indian lands has remained constant from 1492 until the present day. The nomenclature used to discuss Indian land rights has changed a bit, and we now describe Indian lands as being held “in trust” by the United States, a euphemism that simply avoids the necessity of remembering that Indians, with some rare anomalies, are not thought to own the legal title to their lands and can be dispossessed by the U.S. government at any time.5
The moral responsibility of the European nations and later Euro-Americans to bring the gospel and European civilization to the natives has not radically changed since the 1500s either. It has been a sporadic interest of the federal government during the course of American history, never forgotten but rarely a major concern. More often this idea has served as a justification for policies (e.g., Indian removal, allotment and assimilation, termination) that are actually in the best interests of the political and economic forces of the United States, so that the responsibility of the nation to educate, convert, and elevate the Indians socially, economically, and spiritually has been the cloak that hides a multitude of sins.
The recognition of the status of the Indian tribes as nations has changed little between 1763 and the present. In large part their status as defined by the federal courts, Congress, and the chief executive has created a confusing body of law illustrating the continuing effort of the United States to escape this part of its English inheritance. It is important to note, however, that the revolutionary and constitutional fathers accepted without question the English view of the national status of an Indian tribe.
The first evidence of this recognition can be found in a July 1775 congressional speech composed to address the powerful Indian nations on the frontier. It pleads with them to remain neutral and asks them to regard the Revolution as merely a “family quarrel” among the English. A treaty council was held at Fort Pitt in July 1775 in an effort to get the Delaware and Shawnee to remain neutral. In late August and September the Six Nations met with American representatives at German Flats and Albany because the Americans, realizing the strong relationship between the Iroquois and the Crown, hoped to postpone any attacks on the New York and Pennsylvania frontiers. The Americans would meet each year with the Delawares and Shawnees until 1778.
Previous treaties had been conferences in which both parties prepared talks or speeches that they gave to the other party, and after an exchange of views often taking two weeks or more, each party made final speeches that summed up the points under discussion. The treaty would then be considered valid for the points on which agreement had been reached. The United States escalated the diplomatic process in 1778 by drawing up a paper that would be the first Indian treaty written in formal diplomatic style: the Delaware Treaty of September 17, 1778.6 Article 6 of the treaty declared, “And it is further agreed on between the contracting parties should it for the future be conducive for the mutual interest of both parties to invite any other tribes who have been friends to the interest of the United States, to join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress.”7
It might be argued that the promises made by the United States were only words of expediency made in a time of great stress, and as such, the promises were not worthy of belief, nor did they actually invite a permanent relationship between the Delawares and the revolutionary government. Yet this situation in 1778 was not one of desperation for the Americans. They had signed two treaties with France earlier in the year, and there was every indication that Spain might be enticed to enter the war on the colonists’ side. Sir John Butler had led his loyalists and Indian allies on a sweep of the Wyoming valley in Pennsylvania in July, devastating the interior of that colony and sending a wave of terror through the outlying settlements of the frontier. The Delawares had been favorably inclined to side with the Americans since the early treaty at Pittsburgh, when the Ohio tribes voted to remain neutral.8
The purpose of the 1778 treaty was to secure permission of the Delawares to pass through their country so that an American force, including pro-American Delaware and Shawnee, could capture Detroit. Had the Delawares had only a minor political status at that time, it would not have taken any diplomacy, let alone a formal treaty arrangement, to move through their country and attack Detroit and other British posts in Canada. But now with the terrible winter of Valley Forge behind them, with their courageous fight at Monmouth in June, the Americans were ready to go on the offensive. So we have no reason whatsoever to believe that the offer tendered to the Delawares was insincere.
The offer of statehood was subject to congressional approval, but we must not think of Congress in the light of present-day conditions. The Continental Congress was little more than a selection of representatives sworn to prosecute the war to its desired ending: victory for the Americans and independence. It was within the political understanding of the day that the Delawares might want some formal connection with the United States so as to be relieved of their relationship with the English king and to be free from the bullying tactics of the Iroquois, most of whom were the staunch allies of Great Britain. Had the Delawares immediately petitioned for statehood, it would have been a very interesting turn of events. The United States at that time was governed by the Articles of Confederation, and this document gave “states” considerably more flexibility in dealing with Indians than did the later Constitution. The Delawares might well have become the brokers of all federal relationships with the western tribes, and settlement of the interior of the continent might have been radically different.
The Revolution resolved the question of political independence only for the Americans. It did not affect the posture of other European nations toward Indian tribes. After the war the British conducted several treaty councils with the tribes of the Ohio and Great Lakes country. British trading companies dominated the fur trade of the interior and Great Lakes area for several decades. The Spanish quickly made treaties with the strong southeastern tribes, most notably the Creek and Choctaw,9 and in 1785 made an important treaty with the Comanche, which had to be conducted at several locations in the Southwest because the tribe controlled nearly one thousand miles of territory considered by the Spanish to be their borderlands.10 Russian trading companies made treaties with California tribes to secure their title to land. And following the Mexican Revolution in 1820, the new Mexican government immediately began making treaties with tribes who resided primarily in the area later settled by the United States, and continued to do so until the 1870s.11
It has been argued by some people that Indians, by aligning with Great Britain and being much smaller than the United States, became conquered nations at the end of the Revolution. This view can only be maintained through an ignorance of the historical situation. In 1783, at the urging of the Secretary of War, Congress passed the following resolution:
Resolved, That the Secretary of War take the most effectual measures immediately to inform the several Indian nations on the frontiers of the United States that a peace has been concluded with Great Britain and to communicate to them what cessions of forts and territory have been thereby made to the United States, assuring them at the same time that the different posts will soon be occupied by the American troops, intimating also that the United States are disposed to enter into friendly treaty with the different tribes.
The resolution was supported by an order that stated:
That the Secretary of War transmit the proceedings of Congress herein, with copies of President Dickinson’s and General Irvine’s letters to the Commander in Chief, who is directed to request Sir Guy Carleton to take such measures as may second the views of Congress, and prevent the commission of further hostilities by the Indian nations in with Great Britain against the citizens of the United States.12
Contrary to American expectations, the British did not rush to turn over the trading posts to the Americans, nor did any large force of Americans seek to control these posts. The Americans did, however, make in good faith peace treaties with Indian nations who had sided with England. Thus did the Six Nations at Fort Stanwix in October, 1784; the Wyandot, Delaware, Chippewa, and Ottawa in January 1785; the Cherokee in November 1785; the Choctaw in January 1786; and the Chickasaw and Shawnee in January 1786 all make peace treaties with the United States.13
Large numbers of Americans were moving into the Kentucky bluegrass lands, and trade with Indians in that region was difficult to regulate even with the peace. The struggle between the large states with massive although poorly defined western boundaries and the “landless” states—Maryland, Pennsylvania, Delaware, Rhode Island, and New Jersey—over how the lands between the Ohio and Great Lakes were to be governed and settled aggravated the peace on the frontier. Lawless acts by settlers drove the tribes toward conflict, and Congress was impelled to act. In March of 1788 Congress reported the following:
That the confederation of a large number of tribes of Indians, to oppose the settlement of the lands, North of the river Ohio, is a subject of great importance, and seriously claims the attention of the United States. That said tribes of Indians have expressed the highest disgust, at the principle of conquest, which has been specified to them, as the basis of their treaties with the United States, and in consequence of which, the limits of their hunting grounds and territory, have been circumscribed and defined. That the practice of the British government, and most of the Northern colonies previously to the late war, of purchasing the right of the soil of the Indians, and receiving a deed of sale and conveyance of the same, is the only mode of alienating their lands, to which they will peaceably accede. That to attempt to establish a right to the lands claimed by the Indians, by virtue of an implied conquest, will require the constant employment of a large body of troops, or the utter extirpation of the indians [sic]. That circumstanced as they are at present, being in alliance with, and favorably treated by, the British government, the doctrine of conquest is so repugnant to their feelings, that rather than submit thereto, they would prefer continual war. That the principle of waging war for an object which may be obtained by a treaty, is justly to be questioned. That at the ensuing treaty, it is highly probable, the indians will, in the first instance, object to the right of the United States to the country North of the Ohio. If the Commissioners, who are to hold the treaty, are bound by instructions to adhere rigidly to the principle of conquest, and the limits of territory stated at the former treaties, an abrupt departure of the Indians, and hostilities in consequence thereof, may be expected. Your secretary humbly apprehends that the United States may conform to the modes and customs of the indians in the disposal of their lands, without the least injury to the national dignity. Were an opposition to the custom of the indians in this respect to be a material part of the national character, it would not be highly estimated in the opinion of the world.14
The message is quite clear. If the American treaty commissioners implied that the tribes had been conquered, which of course they had not, such an assertion would have provoked a massive Indian war—Great Britain being the chief beneficiary. The United States could not have withstood world opinion on such activities. Hidden in this message is the possibility that many European nations, seeking to control the fledgling American nation, would have given support to the Indians. “Conquest” was a political slogan, not a practical reality, and even as late as 1868 at Fort Laramie,15 the American treaty commissioners were careful not to imply that the Indians were being conquered.
There are many other bits of evidence indicating that the Indians have not been a mere matter of domestic policy, but for our purposes we can conclude by restating some of the basic themes that formed the context for dealing with Indians. The applicability of the Constitution to Indians and Indian tribes must be examined in this setting because these themes always formed the basis for attitudes that influenced the manner in which legislation and policy were formulated. Out of the colonial heritage then, three principles emerged:
1) The land was believed to ultimately belong to the United States, although Indian tribes were recognized as holding a lesser title of occupancy that they could cede to the federal government without duress.
2) Indians were culturally and intellectually inferior to Europeans and Euro-Americans.
3) Indian tribes must nevertheless be treated as nations capable of entering into diplomatic negotiations and making war.
These were interrelated tenets and indicated both the cultural arrogance and political pragmatism of American policy makers. Although these attitudes are nowhere found in the Constitution or law books, they were the dark-colored glasses through which Indians were seen.