In the summer of 1701, 1,300 Indians descended on Montreal, a town with slightly more than one thousand inhabitants. The Indians came from nearly forty separate nations, from as far away as Acadia in the East and the Mississippi in the West. Many of them traveled months to get there. A dozen years earlier, a huge Iroquois war party had destroyed the nearby settlement of La Chine, killing or capturing one hundred people. But the Indians who flocked to Montreal in 1701 came to talk, not to fight.
The Great Peace of Montreal, as it came to be known, was an international summit meeting, the culmination of years of negotiations. After decades of recurrent conflict with the French and their Native allies, the Five Nations that composed the Iroquois League—the Mohawks, Oneidas, Onondagas, Cayugas, and Senecas—faced a demographic crisis. War and disease had scythed their populations, and they needed peace.1 So did the French and the Indian nations who allied with them. An Onondaga chief named Teganissorens had begun exploring paths to peace after a French army destroyed three Mohawk towns in 1693, and his shuttle diplomacy between Onondaga, Albany, and Quebec had slowly built momentum. For almost three weeks in the summer of 1701 Montreal was the stage for a brand of political theater that played out time and again in North America over the course of three centuries as Europeans and Indians engaged in rituals of diplomacy, exchanged lengthy speeches in formal councils, and hammered out deals in private meetings.2 In between the negotiations, Montreal resembled a Bruegel painting, brimming with human activity, as delegates came and went, visiting, feasting, wandering the streets, looking in stores, and trading goods and stories. Indian men, women, and children, speaking dozens of different languages and wearing distinctive hairstyles, body tattoos, and clothing, found themselves rubbing shoulders with French soldiers and colonists, donning French hats and coats, and sampling French food. In the final peace treaty signed on August 4, the various nations agreed to bury the hatchet, consider each other friends, and recognize the French governor as the mediator in disputes. The western tribes allowed the Iroquois to share hunting territories north of Lake Ontario and west of Detroit, and the Iroquois agreed to allow France’s Indian allies access to trade at Albany. Iroquois delegates in Albany also made a new alliance with the English. The Iroquois secured a pivotal position in the international relations of eastern North America and essentially embarked on a new foreign policy, assuming a neutral role in the escalating conflict between Britain and France. It was always an imperfect neutrality—Mohawks regularly fought alongside the English, and Senecas often sided with the French—but it enabled the Iroquois to recover from the crippling losses of the previous century and to sustain their position as the major Native power in the Northeast in the next century.3
Not all Indian treaty councils were as big, dramatic, or far-reaching in their influence as the Great Peace of Montreal. But some were, and all of these meetings were human and cultural encounters that were hugely important to both the Indian people who participated in them and those who did not participate but whose lives were nonetheless affected by those who did and the documents they signed.
Narratives of American history emphasize the bloody series of wars with indigenous peoples that marked European colonization of North America and the westward expansion of the United States. But colonization and expansion were also marked by a series of treaties with Indian peoples. Wars and treaties—violence and law—worked hand in hand in taking America from the Indians. Although Indians sold land to individual colonists or groups of colonists, governments tried to curb the practice and treaties became the primary instruments by which an Indian continent passed into non-Indian hands, and tribal homelands were transformed into real estate. Treaties functioned as stepping-stones of empire. They enabled colonists to establish a foothold on the continent, colonies to expand their domains, and the United States to march westward, one chunk of territory after another. In treaty after treaty, Indian people were coerced, deceived, manipulated, and misled into giving up their lands in return for pittances and promises that more often than not proved empty. In treaty after treaty, Europeans and Americans produced documents that they utilized to justify, codify, and perpetuate their acquisition and occupation of America. When the imperial or federal government tried to protect Indians and their lands from fraud and dispossession, colonial and state governments, land companies, and speculators often undermined their efforts, making treaties and land deals of their own. Indian leaders understood that the words spoken in treaty councils, translated, transmitted to writing, and recorded on paper had the power to take away their lands and their rights. They called the process “pen and ink witchcraft.”4
Indians participated in the pen and witchcraft process by putting pen to paper, signing their agreements usually by marking an x next to or below their names. As the Ojibwe/Dakota scholar Scott Lyons explains, “An x-mark is a sign of consent in a context of coercion; it is the agreement one makes when there seems to be little choice in the matter. To the extent that little choice isn’t quite the same thing as no choice, it signifies Indian agency.”5 Nevertheless, the notion that Indian negotiators were invariably naïve, gullible, and befuddled by legal language or drink does not gibe with the evidence regarding Indian presence and participation that emerges from the records of treaty negotiations. Confronted by duplicitous dealings, divide-and-rule tactics, the arrogance of power, and threats of starvation and destruction, Indians frequently spoke out forcefully, matched their colonizing counterparts in diplomatic savvy, and shaped the outcome of negotiations as they tried, literally, to hold their ground. Sometimes they employed negotiations and treaties to preserve their lands and postpone dispossession. Confronted by hard choices, Indian delegates often knew exactly what they were doing and what the consequences of their decisions were likely to be. And after the treaties were made, they remembered what they had done, protested against abuses of the treaties they had made, lobbied hard to have treaties honored or overturned, and, finally, fought for their treaty rights in the “courts of the conqueror.”6 Early treaties that revolved around trade and required Indian cooperation were more often agreements between equals than were later treaties that revolved around land and required Indian dispossession. When the Mohawks opened their territory to Dutch traders early in the seventeenth century, they negotiated a pact of peace and friendship. The metaphor for the relationship was embodied in the Gus-Wen-Tah or Kaswentha, a two-row wampum belt: a background of white beads linked the Mohawks and Dutch in peace, while parallel rows of purple beads represented them traveling the same river side by side but each group in its own boat, forever separate and equal as autonomous nations.7 As time went on, power relations became increasingly lopsided. The contradictions, flagrant abuses, and hypocrisies in treaty making became glaringly apparent when the United States adapted and applied processes and procedures developed in the colonial era to fuel national expansion with the rapid acquisition of Native lands. Tracing the evolution, application, abolition, and resurgence of treaties illuminates shifts in power, changing attitudes about the place of Indian people in American society, and contested ideas about indigenous rights in a modern constitutional democracy. Treaties are a barometer of Indian-white relations in North America.
Europeans claimed America by the right of discovery. Rights of discovery, Europeans agreed, gave them first claim against other Europeans, although, of course, they frequently and fiercely contested each other’s claims. They established claims to territory by planting standards, making speeches, and acting out other rituals of possession, often in the presence of bemused Native people they had assembled to bear witness to the event.8 At Sault Ste. Marie in 1671, for instance, amid music and pageantry and with four Jesuit priests and delegates from fourteen Indian nations in attendance, the French announced that Louis XIV was taking possession of the entire Mississippi Valley, an area the size of the Indian subcontinent. It was a fiction, of course—France lacked any real power in the area and depended on a network of Indian alliances and recurrent local rituals to build and sustain its western empire—but the purpose of the ceremony was to exclude the English rather than to establish an actual French presence.9 European powers invoked the doctrine of discovery to claim that Christian nations that discovered new lands gained property rights over such lands and could assert sovereignty over the indigenous people living there. Europeans justified taking the lands of indigenous people according to their own colonizing rule of law, which was grounded in medieval discourses of conquest, and they felt free to transfer their claims to other powers without consulting the territory’s indigenous inhabitants.10
In the colonial era, Indians made treaties with the French, Dutch, Spaniards, British, and various British colonies. Roger Williams declared in 1630 that Europeans could justly occupy lands in America “only by purchasing those lands from their rightful owners, the Indians” (an opinion that got him into hot water with the authorities in Massachusetts Bay Colony), but individuals and groups who purchased land from Indian people in private transactions and deeds often employed fraudulent practices. They threatened violence, designated “chiefs” to act for the tribe, plied Natives with alcohol, forged signatures, mistranslated terms, misrepresented boundaries, and often furnished shoddy trade goods in exchange for the lands they acquired. Colonial governments struggled to regulate or prohibit any private purchases and the question of whether individuals had the right to buy Indian lands remained a recurrent issue. Events in the 1760s initiated a new era of treaty relations that brought to the fore tensions—between local interests and imperial or national authority, as well as between Indians and white settlers—that characterized treaty making and treaty maintenance for generations to follow. At the end of the so-called French and Indian Wars in 1763, France relinquished its North American territory, handing over everything east of the Mississippi to Britain and its possessions west of the Mississippi to Spain. Confronted with a vast new empire to administer, the British colonial government tried to control the process of acquiring Indian land by establishing formal treaties between Indian tribes and the Crown’s representatives as the legal means of doing so. Twenty years and a revolution later, Britain ceded all its territory south of the Great Lakes, east of the Mississippi, and north of Florida to the United States, and the government of this new nation set about obtaining full title to the territory in much the same way. The federal government claimed the sole right to acquire Indian lands, which became part of the public domain, and it then re-sold land to American citizens. Transactions carried out by land companies and individual speculators, sometimes in defiance of imperial or federal laws and regulations, were sometimes designated as “treaties,” but formal treaties between sovereigns were the legal basis for acquiring most Indian land in America.11
Twenty years after the United States acquired the region between the Atlantic and the Mississippi from Britain, it bought the Louisiana Territory—stretching roughly from the Mississippi to the Rocky Mountains—from Napoleon Bonaparte, who had acquired it back from Spain with a proviso that he would not sell it to a third party. The next year, Thomas Jefferson dispatched Meriwether Lewis and William Clark on an expedition to the Pacific, during which they proclaimed the United States the new sovereign in the West, and in subsequent decades the United States obtained full title to land in the West by making treaties with the Indian nations that lived there. What European powers conveyed to one another or to the United States was not the land itself, but the preemptive right to negotiate with the indigenous people for title to that land. In Johnson v. McIntosh in 1823, the United States Supreme Court affirmed American inheritance of rights of discovery from Britain and deployed the doctrine of discovery to legitimize national expansion: Native people retained a limited right to occupy the land, but they could sell it to only the United States. In other words, the Indians were little more than tenants. The doctrine of discovery proved to be “a perfect instrument of empire” for the United States, justifying acquisition of the American continent in accordance with the colonizing rule of law derived from Europe.12 Transferring paper claims to territory into actual ownership of land required taking possession by purchase, war, treaty, or some combination of the three.
Between the American Revolution and 1871, when Congress ended Indian treaty making, Indians made more than four hundred treaties with the United States. About 370 were ratified; many others were not. They also made treaties with some individual states. During the Civil War, twenty-one tribes in Indian Territory negotiated nine treaties at four locations with the Indian commissioner for the Confederate states. Some Indian nations made treaties with Spain and Mexico; First Nations tribes made seventeen treaties with the Canadian government; one tribe (the Pomo Indians of northern California in 1817) made a treaty with Russia; in 1847 the Comanches made a treaty with a German settlement in Texas.13 Some tribes made treaties with each other, such as the oral peace pacts in the Comanche-Ute treaty of 1786 or the Great Peace of 1840 between the Kiowas and Cheyennes.14 Some tribes signed no treaties, some just one, and some signed many. The Potawatomis held the record at twenty-six with the United States but the Cherokees made a total of some thirty-eight treaties with colonial, state, and federal governments, as well as a couple with Spain and the Republic of Texas. Some treaties were done in a day, but many treaty councils went on for several weeks. The 1794 treaty council at Canandaigua between the Iroquois and the United States lasted two months. Some treaties involved one tribe; others many. Some were made with only the imperial or federal government; others involved several colonies or states as well. Most treaties involved at least the formalities of establishing or reaffirming peace and friendship, and most but not all involved ceding lands. Although treaty making was infused with power relations and the power shifted dramatically away from the Indian participants over time, treaties, by their nature, remained formal agreements between sovereigns.
Sensing a market for these historical documents, Benjamin Franklin printed the proceedings of thirteen Indian treaties and then sold them in England.15 Treaties have been available in print ever since; more recently they have become accessible in electronic compilations as well as on numerous websites.16 Not surprisingly, lawyers have been most concerned with the terms of the treaties. Others have examined the political and historical as well as the legal dimensions of Indian treaties and, more recently, the process of treaty making and the different philosophies that Indians and Europeans brought to that process.17 While I, too, examine the terms of treaties (and reproduce their original wording in the appendix), I focus on the treaty negotiations as much as on the outcomes of those negotiations, on the individuals who participated as well as the agreements they reached, and on what became of those individuals in the aftermath—and sometimes as a result—of the treaties they made. Before treaties were documents that shaped American history they were events shaped by individuals. Each treaty had its own story and its own cast of characters and involved particular maneuverings and competing ambitions. Treaties were made out of cultural encounters and human dramas, where people representing different societies and ways of life faced each other in a public contest of words rather than weapons, and where power struggles took place as two distinct civilizations and their idea systems collided.18
Viewed from a long perspective of continental domination, the hundreds of Indian treaties look like well-ordered steps in the inevitable march of empire. But it would be wrong to assume that all treaties involved powerful and duplicitous whites browbeating and cheating powerless and clueless Indians. Not all treaties included cessions of Indian land, and many early treaties between colonies and tribes were held primarily to establish, sustain, or renew good relations that were important to both parties. Indians who attended treaties were sometimes concerned with opening or maintaining trade, resolving disputes, or averting conflict rather than selling or protecting their land. As in other encounters, they often found ways to derive advantage from their dealings with colonizing powers. For example, some chiefs used treaties as opportunities to display and enhance their status and to secure gifts that bolstered their own standing and support when distributed among their followers.
The power dynamics usually and increasingly stacked the odds against the Indian participants, and sometimes the United States dictated treaties to Indians in an exercise of raw power. But earlier negotiations usually followed Indian protocol and forms and were sometimes conducted on Indian terms, and Indians usually played a part in determining at least some of a treaty’s final language. Often, Indian participants did not fully understand what was going on; sometimes they understood better than their white counterparts. At times, Indian diplomats played off rival colonial powers, invoked colonial power to browbeat Native rivals, sold the lands of other tribes, and even on occasion sold land out from under their own people. At other times they exerted their oratorical and diplomatic skills in desperate efforts to preserve a way of life in the face of devastating changes. Sometimes, weighing their options and weighing the odds, they chose to accept change as their best chance of survival. A traveler and botanist, John Bartram, who in 1743 visited Onondaga, the central council fire of the League, described the Iroquois as “a subtile, prudent, and judicious people in their councils.”19 They had to be. Indians often learned from hard experience how to hold their own during hard bargaining.20
Treaties are stories within the larger story of American expansion and Indian dispossession, and the story of each treaty contains many other stories. Treaties generally pitted Indians against whites in the contest for America’s resources and the American future, but the colorful cast of characters who assembled at treaty councils followed various paths to get there and brought different experiences and agendas, diverse cultural perspectives, and common human failings. Sometimes a handful of Indians, authorized delegates or not, signed treaties, maybe in a government office or a tavern; at other times Indians assembled at treaty grounds by the hundreds or even thousands. Treaty commissioners often brought with them an entourage of clerks, interpreters, suppliers, and soldiers. Depending on the location of the treaty councils, dozens or even hundreds of spectators and hangers-on could turn out to watch.
Tribes, nations, and colonies did not speak with a united voice. Individuals and groups within groups often had tangential motives for attending the treaties, and competing personalities, agendas, fears, and egos complicated the plot. Individuals often engaged in personal diplomacy prior to or on the sidelines of treaty councils. Treaties were stages for political theater. Even on occasions where the issues had already been settled in battle, in preliminary talks, or in private meetings, treaty councils offered a public ceremony in which to assert sovereignty, revisit past injustices, proclaim the legitimacy of claims, or make a name for oneself. With a sense of the occasion and of their own importance, speakers sometimes engaged in posturing and grandstanding. While the leading actors held forth in public, other players also had key roles, performed behind the scenes, and sometimes deviated from the script. Participants acted for the best or in their own interests but they could not know for sure what the consequences of their actions would be. Sometimes, like nations blundering into war, they made decisions with unforeseeable consequences simply to avoid making other decisions whose consequences were clear and unacceptable. Sometimes the cultural gulf between speakers meant that they talked past each other; sometimes participants left treaty councils dissatisfied, unsure what had happened, or with very different understandings of what had happened. Their lives intersected for a moment of intense cultural and diplomatic encounter and were affected, and in some cases shortened, by the actions they took and the agreements they made.
More than eighty years ago, the scholar Lawrence Wroth made the case for regarding Indian treaties as the first real American literature, containing “the quick stuff of an epic fermentation” and in which “one reads the passion, the greed, and the love of life of hard-living men brought into close relationship without parallel conditions in the history of either race to guide its conduct.” Wroth wished he had read Indian treaties in school as the literature of colonial America, instead of the dull writings of Puritan ministers.21 James Merrell, a historian, agrees: “Councils are compelling theatre, a lively stage on which the peoples of early America acted out the contest for the continent.”22
Treaty making and treaty relations changed over time as multiple Indian nations negotiated with changing Euro-American governments in very different circumstances. Pen and Ink Witchcraft begins with the protocols, practices, and precedents of Indian diplomacy in colonial America but then focuses on a century of shifting treaty relationships that is crucial to understanding not just American Indian history but also the history of America. In 1768 the Treaty of Fort Stanwix culminated imperial efforts to create and maintain a boundary line separating Indians and whites; in 1871 Congress ended treaty making with Indian tribes and assumed that individual Indians would soon be swallowed up within American society. I trace a transition from treaty making in the colonial era to treaty making in the new nation, and from treaty making with the goal of removing Indians to treaty making with the intent of confining and transforming Indians. The core of this book contains the stories behind the Treaty of Fort Stanwix, the Treaty of New Echota in 1835, and the Treaty of Medicine Lodge in 1867. Of course, many other treaties qualify as events of major importance: the Peace of Montreal in 1701, the Treaty of Lancaster in 1744, the Treaty of Fort Pitt in 1778, the Treaty of Greenville in 1795, and the Treaties of Fort Laramie in 1851 and 1868, to name a few, were dramatic in their content and enduring in their consequences. Like the treaties featured here, they shaped the course of Indian relations and American history in what they did and what they failed to do, in the intentions they made clear and the changes they signified, and in the legacies they left. Yet each of the three treaties I concentrate on represents a distinct phase in treaty relations and in the acquisition of Native American land.
Growing hostilities between Indians and colonists after the middle of the eighteenth century, and the bloodletting during and after the French and Indian War, destroyed many previous patterns of coexistence, generated new levels of race hatred, and increased requests on both sides for boundary lines that would separate Indians and whites, even though these people often disagreed about the meanings of boundaries as well as about their placement. The Treaty of Fort Stanwix in New York established a new boundary line between Indian and white lands in a world where Indian and white people mingled, but in doing so this division contributed to escalating racial violence and eventually to the revolution that destroyed that world. In creating this treaty, Sir William Johnson and George Croghan, two Irish traders who became Indian agents and land speculators, exceeded their authority, shifted an imperial boundary westward, pulled off a massive land deal, and did very well for themselves. The Iroquois secured imperial endorsement of their claims to dominance over lands and people they did not dominate. But much of the land the Iroquois gave up belonged to someone else, and the consequences for Johnson and Croghan and for the Iroquois proved dire. Ultimately neither the Iroquois nor the British were able to preserve their former authority in the region.
The Indian Removal Act of 1830 stands as a landmark in federal Indian policy, but the process of Indian removal involved negotiations among the federal government, the states, various tribes, and factions within tribes, and it generated and deepened divisions within the tribes. The Treaty of New Echota implemented removal of the Cherokees from the Southeast and from a world where, said the United States, there was no longer a place for Indians, no matter how “civilized” they might have become. A handful of prominent Cherokees, including Elias Boudinot, a former editor of the bilingual newspaper The Cherokee Phoenix, and Major Ridge and his son John, bowed to what they saw as the inevitable by ceding tribal lands to the United States and setting their people on a dreadful march into exile along the Trail of Tears. They signed the treaty knowing that the penalty for doing so under Cherokee law was death; four years later they died at Cherokee hands in the Indian Territory to which they had been exiled and the schisms that formed around the treaty continued to divide Cherokee society through the Civil War. The Treaty of New Echota stands as the most glaring example of American determination to implement by treaty the policy of removing Indians from the eastern United States to the open spaces beyond the Mississippi, and it is an enduring indictment of a nation that trampled its own treaties in order to carry out ethnic cleansing.
As the United States expanded west across the Great Plains after the Civil War it sought to implement a policy of confining Plains Indians to reservations where they would abandon their mobile hunting lifestyle and adopt a sedentary life as farmers. The Treaty of Medicine Lodge established reservations as crucibles of change where Indians would learn to adapt to a new world and prepare for absorption, and ultimate disappearance, within American society. During the treaty council, an event covered by a young reporter named Henry M. Stanley (famous later in life for his “Doctor Livingston, I presume” greeting in “darkest Africa”), the Kiowa chiefs Satank and Satanta argued for a vision of a future on the southern Plains that their American counterparts knew was impossible and they affixed their names to a peace that could bring no peace. In the violence that followed, both died self-induced deaths. Further breaches of the treaty led, a quarter century later, to one of the most momentous Supreme Court decisions in American Indian history.
These three meetings—in the colonial Northeast, in the early national South, and on the Great Plains as American expansion geared for its final push across the West—signpost the story of Indian relations and nation building in this country. These three stories stand on their own as dramatic human and cultural encounters with far-reaching repercussions; together they represent the workings and evolution of the treaty-making process and the role of treaties in wresting America from its original inhabitants.
Individually and collectively, the men who made these treaties shaped the course of American history. Negotiating in pressure-cauldron situations, they tried to find the words to advance or stem, or just divert and delay, tides of historical change. Their efforts were sometimes sordid, often heroic, but too often tragic and futile. When the dust of conquest and colonialism settled, Indians were left with little land and with treaties that often seemed to be not worth the paper they were written on. But Indian and non-Indian treaty makers left a documentary record unlike any other, and far from being dry and dusty documents or “ancient history,” Indian treaties have life and power. They are foundational documents in the nation’s history, alongside “sacred texts” like the Declaration of Independence and the Constitution, and, like them, they are open to interpretation by subsequent generations.
Treaties hold pledges made long ago and sometimes long deferred. During a visit to Canada in May 2012 Britain’s Prince Charles met with several First Nations leaders in Toronto who showed him a replica of the Treaty of Niagara covenant chain wampum belt their ancestors had given to Sir William Johnson in 1764. They explained its meaning, and Grand Council Chief Mahdabee took the opportunity “to remind him that England is not off the hook yet,” that Canada and Britain are still bound by the obligations made there. In the United States, each year the federal government continues to expend $4,500 for treaty cloth to be delivered to the Iroquois as required by the Treaty of Canandaigua in 1794. Although the government broke the treaty when it built the Kinzua Dam in 1965 and flooded ten thousand acres of Seneca land, and although $4,500 now buys small quantities of muslin instead of yards of expensive cotton cloth, the Iroquois still hold the government to its obligation as evidence that the treaty remains in effect, defining their relationship with the United States and demonstrating a clear expression of their sovereignty.23 Although treaty making in the United States officially ended in 1871, nearly four hundred Indian treaties remain the law of the land today and Indians are the only group in the country that has treaties. Treaties continue to define the status of tribes as sovereign entities; determine rights to hunting, fishing, and other resources; shape dealings with state and federal governments; and provide the basis for much litigation and lobbying. Indians in modern America have not forgotten the treaties their ancestors made and they tend to protest the disregard and breaking of those treaties and the negation of their treaty rights, rather than the treaties themselves. Ironically, protests against treaties more often come from non-Indians who claim that these dusty old documents have no relevance in the modern world and that they give Indians special rights and unfair advantages. Treaties document, sometimes with disturbing clarity, how America in its youth dealt with the first Americans; the pledges that these treaties still contain challenge America in its maturity to do better as its citizens continue to work out the meanings and implementations of treaties in the twenty-first century.24