CHAPTER II

THE ARTICLES OF CONFEDERATION

On April 17, 1754, hostilities between England and France broke out when a French force seized the fork of the Ohio and Monongahela Rivers (an area that later became Pittsburgh) and erected Fort Duquesne. George Washington was dispatched with a small force to counter the French move but was ultimately driven out of the Ohio valley. In mid-June British colonial officials advised the colonies to make a treaty with the Iroquois, and so delegates from New England, New York, Pennsylvania, and Maryland met at Albany, New York, to do so. Recognizing that the situation required more than a basic treaty arrangement, the delegates after ample debate finally adopted a “Plan of Union,” which gave a comprehensive structure for governing the Atlantic seaboard where the English were settled.

A grand (federal) council with legislative power (though colonial assemblies were to retain their own legislative powers for internal affairs) was proposed, as well as a president-general to act as an executive officer. Together they were to have responsibility for Indian affairs and were to supervise relations with Indians, levy taxes for general purposes, and negotiate new land purchases not within the existing boundaries of any of the colonies. It was at this conference that Benjamin Franklin pointed out the smooth functioning of the Iroquois Confederacy and urged his fellow delegates to adopt similar policies.¹

Although the Plan of Union created by the Albany Congress was rejected by the British government, it did establish the paradigm that patterned all subsequent discussions of political unity and organization. The Articles of Confederation, drawn up and adopted in November 1777, reflect the Albany proposal as tempered by the demand to speak directly to the state of rebellion in which the colonies were engaged. A good deal of the substance of the Constitution is found in the articles, but it is also evident that the colonists did not understand the sophistication of the Iroquois Confederacy.2 The stumbling block that emerges in the articles is the document’s inability to deal adequately with the question of sovereignty, an issue that later is better, but not completely, resolved in the Constitution.

Colonies, now states under the articles, insisted on maintaining a measure of foreign relations for themselves. Article 6 declares that “No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince, or state. . . .” Article 9 gave the United States in Congress assembled the sole and exclusive right to make war and peace and enter into treaties—but the states in their own interest could still maintain ambassadors, thus effectively negating and hampering the exercise of sovereignty by the United States.

States could not wage war under Article 6 without the consent of Congress “unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State. . . .” This provision is not altogether clear since it was the white settlers who were invading the lands of the Indians rather than Indians seeking to take the colonists’ property. By allowing the individual states to wage war against the Indians on their own initiative, the articles created a situation in which the danger of conflict on the frontier was maximized—with few expected beneficial results available to the Indians or to the individual states.

The central government under the articles was given the responsibility of “regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated. . . .” This seeming delegation of authority, when placed in the context of a confederation of colonies with charters granting them lands “to the South Seas,” was in fact no delegation at all. Since many of the colonies claimed lands in the interior based upon colonial grants from the Crown made at a time when no Euro-Americans knew the geography of the continent, the reservation of the power to restrict the actions of the federal government with respect to Indians meant that Georgia and some of the other colonies could establish their own political relationships with tribes who lived thousands of miles from the Atlantic coast. And conceivably, several states would be dealing independently with a large Indian tribe that occupied lands to which each of the states laid claim.

The dangers, clearly foreseeable in the manner that the articles allocated responsibility for Indian matters, did not arise for several reasons. The Committee on Indian Affairs monitored the actions of states very closely. In September 1786 Congress admonished Virginia to avoid conflict with the Cherokee and Shawnee for fear of uniting the frontier tribes in the southern part of the country.3 The states were encouraged to get instructions from Congress before trying to deal with Indians. For example, a request from Pennsylvania was favorably received by the Continental Congress in the proceedings of Saturday, September 20, 1783:

[T]hat the legislature of Pennsylvania be informed, in answer to the request of the delegates of that State, in consequence of instructions from the said legislature of the 13th instant, that Congress have no objection to a conference being held on behalf of the State of Pennsylvania, with the Indians on their borders, respecting a purchase to be made by and at the expence of the said State, of lands within the limits thereof; provided no engagements relative to peace or war with the said Indians, be entered into by the said State, the power of holding treaties on this subject being vested by the Confederation solely in the United States in Congress assembled.⁴ [Emphasis added]

In other words, dealing with Indian tribes had two levels of activity—land purchases and war and peace. But even land purchases had to have federal approval and some federal presence to prevent frontier wars that might arise.

Most states were more concerned about resolving the question of the western reserved lands than gaining more land on their borders. Some colonial grants had extended to the South Seas—a rather extravagant gesture by the Crown to entice people to settle the colonies. Landless states—Maryland, Delaware, Pennsylvania, New Jersey, and Rhode Island—insisted that the federal government should have title to the lands north of the Ohio, so not much was done in the way of land purchases during the period of the Articles of Confederation.

Nevertheless, some states did insist on conducting their own Indian relationships. New York, for example, considered itself supreme in dealing with the Indian tribes residing in its boundaries and intended to eventually rid the state of so-called hostile tribes. In an effort to carry out Indian removal and to show its alleged superiority over Indian matters, the state went as far as arresting agents of the Confederated Government who were seeking to negotiate a peace treaty with the tribes.5 North Carolina adopted a similar posture of superiority regarding its relationship with the Cherokee, and Georgia negotiated treaties directly with the Creek during this period. But with the passage of the Trade and Intercourse Act, federal authority became supreme.⁶

The major actions of Congress during the years under the Articles of Confederation testify to the national status the tribes enjoyed. The Ordinance of 1786, for the “Regulation and Management of Indian Affairs,” sought the “safety and tranquility” of the frontiers. It created two districts—north and south of the Ohio River—to be placed under the charge of two superintendents. Part of the superintendents’ job was “whenever they shall have reasons to suspect any tribe or tribes of Indians of hostile intentions, they shall communicate the same to the executive of the state or states whose territories are subject to the effect of such hostilities.” The ordinance further prohibited citizens of other nations from living with any Indian tribe, though there was virtually no possibility of enforcing the ban because the frontier was so expansive. Passports to travel in Indian country were to be issued by the superintendents, and trading licenses, good for no more than one year, were required of all traders. The whole thrust of the ordinance was to establish rules for American citizens, not for Indians or Indian tribes.⁷

Georgia did not pay much attention to the ordinance, but encroached on Indian lands and made treaties for its own convenience with the Cherokee and Creek. Pennsylvania and New York preferred to set up desks at federal treaty proceedings and, as the unwary Indians passed by, to have them sign papers ceding lands to these states. The land cessions demanded in the South affected a considerable amount of territory; they usually involved securing bottomlands along an extensive portion of a river because big plantations required easy transportation of cotton and other agricultural crops to seacoast cities. Thus a year after the ordinance, when the question of providing a government for the territories north of the Ohio became necessary, Congress passed another ordinance, this one containing a clear statement of policy.

The Northwest Ordinance of July 13, 1787,8 created a governor for the territory and a general assembly to pass laws modeled after the domestic laws of existing states. No fewer than three nor more than five states could be created in the designated area, and while new states were to be admitted to the union on an “equal footing” with the original states, they were restricted, as a territory and as new states, from interfering “with the primary disposal of the soil by the United States . . . nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers.” Article 3 contained statements of morality unusual in an act of Congress and spelled out the policy toward the Indian inhabitants who were, after all, the original owners of the soil that was to be distributed so casually. The article reads:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.⁹ [Emphasis added]

This article can be understood as a transitional phase in the conception of Indians: the need for avoiding war is evident, but the tone is one of protecting the Indians from the depredations of American settlers.

Insofar as the article and ordinance clarify the status of Indians, it is clear that in restricting conflict to “just and lawful wars” the congressional thinking was to follow the tenets of international law, adopting the very phrase that was used by the early Spanish explorers reading the Requirimiento to the natives of Central America and Mexico prior to attacking them. Congress never did bother to examine whether the wars it waged against the tribes in the West were just or lawful; it merely appropriated funds to wage these wars. Presumably this sentiment concerning the northern Indians also extended to the southeastern Indian tribes; following the adoption of the Constitution, the provisions of this ordinance were generally incorporated in a succeeding act that covered the territories south of the Ohio River.10

The Articles of Confederation were superseded by the adoption of the Constitution in 1789. Vigorous debate in the Constitutional Convention was followed by contending parties, the “Federalists” (pro-Constitution) and “anti-Federalists” (anti-Constitution), debating in newspapers and publicly distributed pamphlets the differences between the articles and the proposed new document. The anti-Federalists, content with the arrangement under the articles, did not raise the question of the Indian relationship, assuming perhaps that the states could deal with the question. The Federalists saw Indians as having both international and domestic relevance. In Federalist No. 42 James Madison attacked the unwieldy procedure required by the articles:

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the Articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State is not yet settled, and has been a question of frequent perplexity and contention in the federal councils.¹¹

Madison objected to the vague wording that failed to define the status of Indians within state borders. Although the Six Nations lived within the state of New York, the real problem was the vast tracts of land still occupied by the Creek and Cherokee in Georgia, the most aggressive of the former colonies claiming all the land described in its charter. This question was slightly touched upon when discussions on representation and direct taxation were the subject of debate. While some people could argue that there was never a clear idea of which Indians would be under the jurisdiction of state governments and which ones were to remain independent of state political control, the content of the discussion assumes that taxable Indians would be those individuals who had left their tribes.

Of considerably more importance was the fact that the Indian tribes living on the frontier could align themselves with those European nations who still coveted lands in North America and had the capability of conducting war against the American settlements. Madison, writing to Thomas Jefferson on October 24, 1787, reported a rumor about a possible conflict as part of his pro-Constitution argument. “We hear from Georgia that that State is threatened with a dangerous war with the Creek Indians. The alarm is of so serious a nature, that law-martial has been proclaimed, and they are proceeding to fortify even the Town of Savannah. The idea there, is that the Indians derive their motives as well as their means from their Spanish neighbors” [emphasis added].12 Alexander Hamilton, writing as “Publius” in Federalist No. 24, best summarized the perceived status of the Indian tribes on the frontier. After warning that British and Spanish settlements were ringing the frontier, thus possibly preventing American growth across the Appalachians, Hamilton projected a scenario for the future, possibly the first instance of American paranoia over the threat of foreign countries:

The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable.¹³

In his next offering Hamilton repeated his warning. “The territories of Britain, Spain and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner to be the objects of common council and of a common treasury.”¹⁴ Hamilton saw war with Indians in an international setting: “Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions.”¹⁵

This fear of foreign intervention did not decrease with the adoption of the Constitution. The Act of June 30, 1834,¹⁶ provided that “if any citizen or other person residing within the United States, or the territory thereof, shall send any talk, speech, message or letter, to any Indian nation, tribe, chief, or individual, with an intent to produce a contravention or infraction of any treaty or other law of the United States, or to disturb the peace and tranquillity of the United States, he shall forfeit and pay the sum of two thousand dollars.” Even during the American Civil War, the settlers in the West lived in fear that the Indians on the frontier would unite with the South and push them from their homes.

Indians could not have been conceived to be within the scope of constitutional provisions and still be conceived to be independent and conspiring with foreign treaties in alliances seeking warfare with the United States. Because the United States linked the Indians with foreign nations as possible enemies, the only recourse for the federal government was to secure land cessions and treaties of peace with them and gradually extend American jurisdiction over lands to the west. The laws mentioned in the Ordinance of 1787 were for the protection of the Indians, not for their exploitation, so we must read the treaty texts in that light even though some very unequal bargains were forced on the tribes.

The federal government under the Articles of Confederation had little real authority. In almost every important area in which a nation would be expected to act as a unified entity, sovereignty was split between the national government and the individual states. Particularly in the South, confederation was more a convenience than reality. The southern states were always vulnerable to the machinations of the Spanish colonies in the Floridas and Louisiana, and Spanish colonial officials went out of their way to cultivate the good feelings of the powerful Creek Confederacy, keeping the level of paranoia in Georgia and the Carolinas at a fever pitch. The contemporary heritage of the days of the Articles of Confederation is the propensity of states to assert their sovereign rights in defiance of the national government. And although the Constitution resolved the issue of splitting both sovereignty and subject matter in the allocation of powers between the federal government and the states, the tradition had been established that under certain ill-defined conditions, states could occasionally take matters into their own hands when it came to dealing with the Indians.