OUR INDIAN POLICY
_--The Indian right of occupancy recognized through the liberal policy
of Washington and Jefferson._
By the terms of the definitive treaty of 1783, concluding the war of the
revolution the territory northwest of the river Ohio passed forever from
the jurisdiction of the British government, over to the new born states
of the United States. By the first article of that treaty, the thirteen
former colonies were acknowledged to be free, sovereign and independent
powers, and Great Britain not only relinquished all her rights to the
government, but to the "proprietary and territorial rights of the same,
and every part thereof." At the time of that treaty, the northwest
territory was occupied by a number of powerful and warlike tribes of
savages, yet no reservation of any kind was made in their favor by the
English negotiators. The Iroquois confederacy of New York, and more
particularly the Mohawks, had stood out stoutly on the side of the king,
but they were wholly forgotten in the articles of peace. Of this action,
Joseph Brant, the Mohawk leader, in his communications with Lord Sidney,
in 1786, most bitterly complained, expressing his astonishment "that
such firm friends and allies could be so neglected by a nation
remarkable for its honor and glory." Yet if Brant had been better
acquainted with the policy and usage of European nations, he would have
known that England had granted away not only the sovereignty, but the
very soil of the territory itself, subject only to the Indian rights of
occupancy. In all the ancient grants of the crown to the duke of York,
Lord Clarendon and others, there passed "the soil as well as the right
of dominion to the grantee." France, while adopting a liberal policy
toward the savages of the new world, claimed the absolute right of
ownership to the land, based on first discovery. Spain maintained a like
claim. The war for supremacy in the Saint Lawrence, the Mississippi and
the Ohio valleys between Great Britain and France, terminating in the
peace of 1763, was a war waged for the control of lands and territory,
notwithstanding the occupancy of the Indian tribes. If a country
acquired either by conquest or prior discovery, is filled with a people
attached to the soil, and having fixed pursuits and habitations, the
opinion of mankind would seem to require that the lands and possessions
of the occupants should not be disturbed, but if the domain discovered
or conquered is filled with a race of savages who make no use of the
land, save for the purpose of hunting over it, a different solution must
of necessity result. There can be no admixture of races where the one is
civilized and the other barbarous. The barbarian must either lose his
savagery and be assimilated, or he must recede. The North American
Indian was not only brave, but fierce. In the wilds and fastnesses of
his native land, he refused to become either a subject or a slave. No
law of the European could be formulated for his control; he obeyed only
the laws of nature under which he roamed in freedom. He knew nothing of
fee or seisin, or the laws of conveyancing, as his white brother knew
it. He knew only that the rivers and the forests were there, and that he
gained his subsistence from them. With him, the strongest and the
fiercest had the right to rule; the right to hunt the buffalo and elk.
The European put fire arms into the hands of the Iroquois warrior, and
that warrior at once made himself master of all north of the Ohio and
east of the Mississippi, without regard to the prior claims of other
tribes. To expect that a savage of this nature could be dealt with under
the ordinary forms and conventions of organized society, was to expect
the impossible. To him, the appearance of a surveyor or a log cabin was
an immediate challenge to his possession. Today he might be brought to
make a treaty, but on the morrow he was filled with a jealous hate
again, and was ready to burn and destroy. On the other hand, to leave
him in the full possession of his country was, as Chief Justice Marshall
said: "To leave the country a wilderness." To stop on the borderland of
savagery and advance no further, meant the retrogression of
civilization. The European idea of ownership was founded on user. The
inevitable consequence was, that the conqueror or discoverer in the new
world claimed the ultimate fee in the soil, and the tribes receding, as
they inevitably did, this fee ripened into present enjoyment. When Great
Britain, therefore, owing to the conquests of George Rogers Clark,
surrendered up to the United States her jurisdiction and control over
the territory north and west of the Ohio river, she did, according to
the precedent and usage established by all the civilized nations of that
day, pass to her grantee or grantees, the ultimate absolute title to the
land itself, notwithstanding its savage occupants, and the right to deal
with these occupants thenceforward became a part of the domestic policy
of the new republic, with which England and her agents had nothing to
do. "It has never been doubted," says Chief Justice Marshall, "that
either the United States, or the several states, had a clear title to
all the lands within the boundary lines described in the treaty, subject
only, to the Indian right of occupancy, and that the exclusive power to
extinguish that right was vested in that government which might
constitutionally exercise it." These facts should be kept in mind when
one comes to consider the equivocal course that England afterwards
pursued.
But how were the savage wards occupying these lands, and thus suddenly
coming under the guardianship of the republic, to be dealt with? Were
they to be evicted by force and arms, and their possessory rights
entirely disregarded, or were their claims as occupants to be gradually
and legitimately extinguished by treaty and purchase, as the frontiers
of the white man advanced? In other words, was the seisin in fee on the
part of the states, or the United States, to be at once asserted and
enforced, to the absolute and immediate exclusion of the tribes from the
lands they occupied, or was a policy of justice and equity to prevail,
and the ultimate right to the soil set up, only after the most diligent
effort to ameliorate the condition of the dependent red man had been
employed? The answer to this question had soon to be formulated, for on
March 1st, 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee and James
Monroe, delegates in the Continental Congress on the part of the State
of Virginia, in pursuance of the magnanimous policy of her statesmen,
executed a deed of cession to the United States, of all her claim and
right to the territory northwest of the Ohio, the same to be used as a
common fund "for the use and benefit of such of the United States as
have become, or shall become, members of the confederation or federal
alliance of the states." The only reservations made were of a tract of
land not to exceed one hundred and fifty thousand acres to be allowed
and granted to General George Rogers Clark, his officers and soldiers,
who had conquered Kaskaskia, Vincennes, and the western British posts
under the authority of Virginia, said tract being afterwards located on
the Indiana side of the Ohio, adjacent to the falls of that river, and
known as the "Illinois Grant," and a further tract to be laid off
between the rivers Scioto and Little Miami, in case certain lands
reserved to the continental troops of Virginia upon the waters of the
Cumberland, "should, from the North Carolina line, bearing in further
upon the Cumberland lands than was expected," prove to be deficient for
that purpose. The cession of Virginia was preceded by that of New York
on the first day of March, 1781, and followed by that of Massachusetts,
on the 19th day of April, 1785, and that of Connecticut on the 14th of
September, 1786, and thus the immense domain now comprising the states
of Ohio, Indiana, Illinois, Michigan and Wisconsin, with the exception
of the reservations of Virginia, and a small reservation of the state of
Connecticut in northeastern Ohio, passed over to the general government,
before the adoption of the federal constitution, and before George
Washington, the first president of the United States, was sworn into
office, on the 30th day of April, 1789.
But the wisdom and the broad national views of the leading Virginia
law-makers and statesmen, had already, in great measure, pointed the way
to the Indian policy to be pursued by Washington and his successors. No
state, either under the old confederation or the new constitution,
presented such a formidable array of talent and statecraft as Virginia.
Washington, Jefferson, John Marshall, and Madison, stood pre-eminent,
but there was also Edmund Randolph, Patrick Henry, James Monroe, George
Mason, William Grayson and Richard Henry Lee.
Washington had always taken a deep and abiding interest in the western
country. In 1770 he had made a trip down the Ohio in company with his
friends, Doctor Craik and William Crawford. The distance from Pittsburgh
to the mouth of the Great Kanawha was two hundred and sixty-five miles.
The trip was made by canoes and was rather hazardous, as none of
Washington's party were acquainted with the navigation of the river. The
party made frequent examinations of the land along the way and
Washington was wonderfully impressed with the future prospects of the
country. Arriving at the mouth of the Great Kanawha, he ascended that
river for a distance of fourteen miles, hunting by the way, as the land
was plentifully stocked with buffalo, deer, turkeys and other wild game.
He also made critical observations of the soil here, with a view to
future acquisitions. The whole country below Pittsburgh at that time,
was wild and uninhabited, save by the Indian tribes.
At the close of the revolution the minds of Washington, Jefferson and
other leading Virginians were filled with the grand project of
developing and colonizing the west, and binding it to the union by the
indissoluble ties of a common interest. There was nothing of the narrow
spirit of provincialism about these men. Their thoughts went beyond the
limited confines of a single state or section, and embraced the nation.
They entertained none of those jealousies which distinguish the small
from the great. On the contrary, they looked upon the mighty
trans-montane domain with its many watercourses, its rich soil, and its
temperate climate, as a rich field for experimentation in the erection
of new and free republics. The deed of cession of Virginia had provided:
"That the territory so ceded shall be laid out and formed into new
states, containing a suitable extent of territory, not less than one
hundred, nor more than one hundred fifty miles square, or as near
thereto as circumstances will admit: and that the states so formed
should be distinct republican states, and admitted members of the
federal union, having the same rights of sovereignty, freedom, and
independence, as the other states." If this great public domain, thus
dedicated to the whole nation, and under the control of its supreme
legislative body, the continental congress, could be filled up with a
conglomerate population from all the states, factions and sectional
jealousies would disappear, and at the same time the original states
would be more closely knit together by the bonds of their common
interest in the new federal territory.
But there was one great obstacle to the realization of these hopes, and
that was the difficulty of opening up any means of communication with
this western empire. The mountain ranges stood as barriers in the way,
unless the headwaters of such rivers as the Potomac and the James, could
be connected by canals and portages with the headwaters of the Ohio and
its tributaries. If this could be accomplished, and if the headwaters of
the Miami, Scioto and Muskingum, could be connected in turn with those
of the Cuyahoga, the Maumee and the Wabash, then all was well, for this
would furnish an outlet for the commerce of the west through the ports
and cities of the Atlantic seaboard. There were other and highly
important political questions that engaged Washington's attention at
this time, and they were as follows: The English dominion of Canada
bordered this northwest territory on the north. The British, contrary to
the stipulations of the treaty of peace of 1783, had retained the posts
of Detroit, Niagara and Oswego, to command the valuable fur trade of the
northwest, and the Indian tribes engaged therein, and in addition they
also enjoyed a complete monopoly of all trading vessels on the Great
Lakes. To the south and west of this northwest territory lay the
Spanish possessions, and the Spanish were attempting to bar the settlers
of Kentucky from the use of the Mississippi for the purposes of trade.
In other words, they were closing the market of New Orleans against the
Kentuckians. But suppose that either or both of these powers, who were
then extremely jealous of the growth and expansion of the new republic,
should hold forth commercial advantages and inducements to the western
people? What then would be the result? What then the prospect of binding
any new states to be formed out of this western territory in the
interest of the federal union?
With all these great questions revolving in his mind, we see the father
of his country again on horseback in the year 1784, traversing six
hundred and eighty miles of mountain wilderness in Pennsylvania and
Virginia and examining the headwaters of the inland streams. He made
every inquiry possible, touching the western country, examined every
traveler and explorer who claimed to have any knowledge of its
watercourses and routes of travel, and after spending thirty-three days
of fatiguing travel in the saddle, he returned to his home and made a
report of his observations to Governor Harrison of Virginia. His remarks
on the western country are so highly interesting and important, and
manifest such a deep and profound interest in the future welfare of the
western world, as to call for the following quotations:
"I need not remark to you that the flanks and rear of the United States
are possessed by great powers, and formidable ones, too; nor how
necessary it is to apply the cement of interest to bind all parts of
the Union together by indissoluble bonds, especially that part of it,
which lies immediately west of us, with the middle states. For what
ties, let me ask, should we have upon these people? How entirely
unconnected with them shall we be, and what troubles may we not
apprehend, if the Spaniards on their right, and Great Britain on their
left, instead of throwing stumbling-blocks in their way, as they now do,
should hold out lures for their trade and alliance? What, when they get
strength, which will be sooner than most people conceive (from the
emigration of foreigners, who will have no particular predilection
towards us, as well as from the removal of our own citizens), will be
the consequence of their having formed close connections with both or
either of those powers, in a commercial way? It needs not, in my
opinion, the gift of prophecy to foretell."
"The western states (I speak now from my own observation) stand as it
were upon a pivot. The touch of a feather will turn them any way. They
have looked down the Mississippi, until the Spaniards, very
impolitically, I think, for themselves, threw difficulties in their way;
and they look that way for no other reason, than because they could
glide gently down the stream; without considering, perhaps, the
difficulties of the voyage back again, and the time necessary to perform
it in; and because they have no other means of coming to us, but by long
land transportations and unimproved roads. These causes have hitherto
checked the industry of the present settlers; for except the demand for
provisions, occasioned by the increase of population, and a little
flour, which the necessities of the Spaniards compel them to buy, they
have no incitements to labor. But smooth the road, and make easy the way
for them, and then see what an influx of articles will be poured upon
us; how amazingly our exports will be increased by them, and how amply
we shall be compensated for any trouble and expense we may encounter to
effect it."
"A combination of circumstances makes the present conjuncture more
favorable for Virginia, than for any other state in the union, to fix
these matters. The jealous and untoward disposition of the Spaniards on
the one hand, and the private views of some individuals, coinciding with
the general policy of the court of Great Britain, on the other, to
retain as long as possible the posts of Detroit, Niagara, and Oswego
(which though done under the letter of the treaty, is certainly an
infraction of the spirit of it, and injurious to the Union) may be
improved to the greatest advantage by this state, if she would open the
avenues to the trade of that country, and embrace the present moment to
establish it. It only wants a beginning. The western inhabitants would
do their part towards its execution. Weak as they are, they would meet
us at least half-way, rather than be driven into the arms of foreigners,
or be made dependent upon them; which would eventually either bring on a
separation of them from us, or a war between the United States and one
or other of those powers, most probably the Spaniards."
These remarks coming from the pen of Washington aroused intense
interest in Virginia. He did not stop there. On the fourteenth of
December, 1784, we see him calling the attention of the president of the
old continental congress to these affairs. He urged, "that congress
should have the western waters well explored, their capacities for
navigation ascertained as far as the communications between Lake Erie
and the Wabash, and between Lake Michigan and the Mississippi, and a
complete and perfect map made of the country at least as far west as the
Miamis, which run into the Ohio and Lake Erie," and he pointed out the
Miami village as the place for a very important post for the Union. The
expense attending such an undertaking could not be great; the advantages
would be unbounded. "Nature," he said, "has made such a display of her
bounty in these regions that the more the country is explored the more
it will rise in estimation. The spirit of emigration is great; people
have got impatient; and, though you cannot stop the road, it is yet in
your power to mark the way. A little while and you will not be able to
do either." Such were the enlightened and fatherly hopes that Washington
thus early entertained of the great west and its struggling pioneers,
who were trying to carve out their destinies in a remote wilderness.
No less enlightened were the views of Jefferson. He may be said in truth
to be the father of the northwest. When a member of the legislature of
Virginia, he had promoted the expedition under George Rogers Clark,
which resulted in the conquest of the northwest, and its subsequent
cession to the United States under the treaty of 1783. As governor of
Virginia he had taken part in its cession to the general government on
March first, 1784. "On that same day," says Bancroft, "before the deed
could be recorded and enrolled among the acts of the United States,
Jefferson, as chairman of a committee, presented a plan for the
temporary government of the western territory from the southern boundary
of the United States in the latitude of thirty-one degrees to the Lake
of the Woods. It is still preserved in the national archives in his own
handwriting, and is as completely his own work as the Declaration of
Independence." As the profoundest advocate of human rights of his day or
time, freeing himself from the narrow spirit of sectionalism, and
despising human slavery and its contamination of the institutions of a
free people, he proposed the ultimate establishment of ten new states in
the territory northwest of the Ohio, a republican form of government for
each of them, and no property qualification for either the electors or
the elected. "Following an impulse of his own mind," he proposed the
everlasting dedication of the northwest to free men and free labor, by
providing that after the year 1800 there should be neither slavery nor
involuntary servitude in any of them. While Jefferson's plan for the
exclusion of slavery was stricken from the ordinance, his noble ideas of
freedom were afterwards fully and completely incorporated in the final
Ordinance of 1787, whereby "neither slavery nor involuntary servitude,
in the said territory, otherwise than in the punishment of crime,
whereof the party shall have been duly convicted," should ever be
permitted. This ordinance, through the predominating influence of
Virginia and her statesmen, was passed by the vote of Georgia, South
Carolina, North Carolina, Virginia, Delaware, New Jersey, New York and
Massachusetts, and afterwards ratified by the legislature of Virginia
who had to consent thereto to give it full force.
It is at once apparent that these statesmen and patriots who looked
forward to the establishment of free republics in the western domain,
based on free labor and equal rights, would never consent that the
foundation of these new republics should be laid in blood. The outrages
perpetrated on the frontiers of New York, Pennsylvania and Virginia, and
on the infant settlements of Kentucky, during the revolution, and all at
the instigation of the British, had left behind them a loud cry for
vengeance. In fact similar outrages were still taking place daily. The
claim was made that under the treaty of peace with Great Britain, that
no reservation had been made in favor of any of the Indian tribes, or in
favor of their claims to any of the lands they occupied; that under the
treaty the absolute fee in all the Indian lands within the limits of the
United States had passed to the several states such as Virginia, who had
a legitimate claim to them, and later by cession of these states to the
general government, and that congress "had the right to assign, or
retain such portions as they should judge proper;" that the Indian
tribes, having aided Great Britain in her attempt to subjugate her
former colonies, and having committed innumerable murders, arsons and
scalpings on the exposed frontiers, should now be required to pay the
penalty for their crimes; that their lands and hunting grounds should
stand forfeit to the government, and they be expelled therefrom. In
other words, it was asserted that the government should turn a harsh and
stern countenance towards all these savage marauders and drive them by
force, if need be, from the public lands.
Towards all these arguments in favor of a hard and uncompromising
attitude toward the savage tribes, both Washington and Jefferson turned
a deaf ear. They assumed a high plane of mercy and forgiveness towards
the red man that must ever redound to their glory. On August 7th, 1789,
in a message to the senate of the United States, Washington said: "While
the measures of government ought to be calculated to protect its
citizens from all injury and violence, a due regard should be extended
to those Indian tribes whose happiness, in the course of events, so
materially depends upon the national justice and humanity of the United
States." These sentiments were reflected in his course of action from
the first day of peace with Great Britain. He, together with General
Philip Schuyler, said, "that with regard to these children of the
forest, a veil should be drawn over the past, and that they should be
taught that their true interest and safety must henceforth depend upon
the cultivation of amicable relations with the United States." He took
the high ground that peace should be at once granted to the several
tribes, and treaties entered into with them, assigning them certain
lands and possessions, within the limits of which they should not be
molested. To avoid national dishonor, he advocated the purchase of all
lands occupied by the various Indian tribes as the advance of the
settlements should seem to require, thus fully recognizing the Indian
right of occupancy. He utterly rejected all ideas of conquest, and as he
commanded a powerful influence over all the better minds of that day,
his counsels prevailed.
To those who have read Jefferson's speeches to the Little Turtle, the
Miamis, Potawatomi and Delawares in the year 1808, near the close of his
second administration, the broad humanitarianism and fatherly
benevolence of the third president is at once apparent. In those
addresses he laments the "destructive use of spirituous liquors," the
wasting away of the tribes as a consequence thereof, and directs the
attention of their chieftains to "temperance, peace and agriculture," as
a means of restoring their former numbers, and establishing them firmly
in the ways of peace. "Tell this, therefore, to your people on your
return home. Assure them that no change will ever take place in our
dispositions toward them. Deliver to them my adieux, and my prayers to
the Great Spirit for their happiness. Tell them that during my
administration I have held their hand fast in mine; that I will put it
into the hand of their new father, who will hold it as I have done."
Jefferson demanded always that the strictest justice should be done
toward the tribes, and carrying forward his ideas in his first ordinance
of 1784, for the government of the northwest territory, he inserted a
provision that no land was to be taken up until it had been first
purchased from the Indian tribes and offered for sale through the
regular agencies of the government.
The tree of justice thus planted by Washington and Jefferson, flourished
and grew until it produced the magnificent fruit of the Ordinance of
1787, wherein it is stipulated that: "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 them, and for preserving peace and friendship with them."
[Illustration: Thomas Jefferson, Third President of the United States.]
In order that we may trace the development of the principles of equity
thus incorporated in the Ordnance of 1787, and which thenceforward
distinguished the domestic policy of the federal government towards the
tribes, a brief review of the treaties had and negotiated with the
Indian tribes prior to that year now becomes germane. The first treaty
after the revolution was that of Fort Stanwix (Rome) New York, concluded
on the 22nd day of October, 1784, by and between Oliver Wolcott, Richard
Butler and Arthur Lee, commissioners plenipotentiary of the United
States, on the one part, and the sachems and warriors of the Six Nations
of the Iroquois confederacy, on the other part. This treaty was opposed
by Joseph Brant, chief of the Mohawks, and a firm friend and ally of the
British, but supported by the Cornplanter, his rival, who was a friend
of the United States. By its terms the United States gave peace to the
Senecas, Mohawks, Onondagas and Cayugas on their delivery of hostages to
secure the return of prisoners taken during the Revolution; secured the
Oneidas and Tuscaroras, who had fought on the side of the United States,
in the possession of the lands they occupied, and took all the tribes
under the protection of the federal government. On the other hand, the
Iroquois tribes yielded to the United States any and all claims to the
territory west of the western line of Pennsylvania, thus surrendering up
any further pretensions on their part to any of the lands in the
northwest territory. The treaty seems to have been openly conducted, and
really exhibited no small degree of leniency on the part of the
government, as the Mohawks especially had taken part in many horrible
massacres on the American frontier during the Revolution and were the
objects of almost universal execration. Then again, the Iroquois had
really sacrificed but little in surrendering their claims to the lands
west of the Pennsylvania line, for while they had at one time
undoubtedly conquered all of the tribes east of the Mississippi, these
days of glory had long since departed, and the Wyandots, Delawares and
Miamis were the rightful owners of a large part of the Ohio country. The
treaty of Fort Stanwix was followed about ninety days later by the
treaty of Fort McIntosh, concluded on the 21st day of January, 1785, at
the mouth of Beaver creek, in Pennsylvania. The commissioners on the
part of the United States were George Rogers Clark, Richard Butler and
Arthur Lee, while the Indian negotiators were the "Half-King of the
Wyandots, Captain Pipe, and other chiefs, on behalf of the Wyandot,
Delaware, Ottawa and Chippewa nations." By the articles of this treaty
the outside boundaries of the Wyandots and Delawares were fixed as
follows: Beginning at the mouth of the River Cuyahoga, where the city of
Cleveland now stands, and running thence up said river to the portage
between that and the Tuscarawas branch of the Muskingum; thence running
down said branch to the forks of the crossing place above old Fort
Laurens; thence extending westerly to the portages between the branches
of the Miami of the Ohio and the St. Marys; thence along the St. Marys
to the Miami village; thence down the Maumee to Lake Erie; thence along
the south shore of Lake Erie to the place of beginning. The Wyandot and
Delaware nations, together with some Ottawa tribesmen dwelling among the
Wyandots, were given the right and privilege of living and hunting upon
the lands embraced within the above limits, but the United States
reserved tracts of six miles square each, at the mouth of the Maumee, at
Sandusky, and at the portage of the St. Marys and Great Miami, as well
as some further small tracts at the rapids of the Sandusky river, for
the establishment of trading posts. All land east, south and west of the
above boundaries was acknowledged to be the property of the government,
and none of the above tribes were to settle upon it. Further
reservations for trading posts were made at Detroit and Michillimacinac.
The Wyandots, Delawares, Ottawas and Chippewas were granted peace, and
at the same time were made to acknowledge the absolute sovereignty of
the United States. Any Indian committing a murder or robbery upon any
citizen of the United States was to be delivered to the nearest post for
punishment according to the laws of the nation. The third and last
treaty before the Ordinance, affecting the northwest, was held at the
mouth of the Great Miami, on January 31st, 1786, between George Rogers
Clark, Richard Butler and Samuel H. Parsons, commissioners, and the
murderous and horse-stealing Shawnees, and but for the cool daring and
intrepidity of Clark, there probably would have been a massacre. Some
restraint was sought to be imposed on the Shawnee raiders who constantly
kept the frontiers of Kentucky and Virginia in a turmoil. Owing to their
absolute hostility, however, and the influence of the British agents at
Miamitown and Detroit, only a few of the younger chiefs attended the
conference. The Shawnees were made to acknowledge the United States as
the "sole and absolute sovereigns of all the territory ceded to them by
a treaty of peace, made between them and the king of Great Britain, the
fourteenth day of January, one thousand seven hundred and eighty-four,"
and in turn were granted peace and protection. They were allotted
certain lands to live and hunt upon, on the headwaters of the Great
Miami and the Wabash rivers.
But a fundamental error had crept into all these negotiations, and that
was, that the Indians' ancient right of occupancy was not recognized.
That right of present enjoyment and possession, although claimed by
savages who had waged war without mercy, against women and children,
was still a right. In the years to come, and after the new constitution
of the Union came into force and effect, the Supreme court of the United
States, sitting in solemn judgment upon this very question, would have
to pronounce that the Indian tribes had an unquestioned right to the
lands they occupied, "until that right was extinguished by a voluntary
cession to the government," notwithstanding the fact that the ultimate
fee in the soil rested in the government. To declare that the Iroquois,
the Wyandots and the Delawares, suddenly became divested of every
species of property in their lands, on the ground that they had
forfeited them by waging war against the United States, was to declare
that which could never be defended in a court of conscience and equity.
But in the first hot moments succeeding the Revolution, and before men's
minds had time to cool, that was practically the principle upon which
the continental congress had proceeded.
By consulting the records of the old congress of date October 15th,
1783, it is found that a committee composed of Mr. Duane, Mr. Peters,
Mr. Carroll, Mr. Hawkins and Mr. Arthur Lee, to whom had been referred
the whole question of Indian affairs, had reported in substance as
follows: That while the Indian tribes were "disposed to a pacification,"
that they were not in "a temper to relinquish their territorial claims
without further struggles;" that if the tribes were expelled from their
lands, they would probably retreat to Canada, where they would meet with
"a welcome reception from the British government;" that this accession
of power on the part of Canada would make her a formidable rival in
case of future trouble, and secure to her people the profits of the fur
trade; "that although motives of policy as well as clemency ought to
incline Congress to listen to the prayers of the hostile Indians for
peace, yet in the opinion of the committee it is just and necessary that
lines of property should be ascertained and established between the
United States and them, which will be convenient to the respective
tribes, and commensurate to the public wants, because the faith of the
United States stands pledged to grant portions of the uncultivated lands
as a bounty to their army, and in reward of their courage and fidelity,
and the public finances do not admit of any considerable expenditure to
extinguish the Indian claims upon such lands;" that owing to the rapid
increase in population it was necessary to provide for the settlement of
the territories of the United States; that the public creditors were
looking to the public lands as the basis for a fund to discharge the
public debt. The committee went further. They reported with some
particularity that the Indians had been the aggressors in the late war,
"without even a pretense of provocation;" that they had violated the
convention of neutrality made with Congress at Albany in 1775, had
brought utter ruin to thousands of families, and had wantonly desolated
"our villages and settlements, and destroyed our citizens;" that they
should make atonement for the enormities they had perpetrated, and due
compensation to the republic for their wanton barbarity, and that they
had nothing wherewith to satisfy these demands except by consenting to
the fixing of boundaries. Wherefore, it was resolved that a convention
be held with the tribes; that they be received into the favor and
protection of the United States, and that boundaries be set "separating
and dividing the settlements of the citizens from the Indian villages
and hunting grounds."
It will be seen that in all this report there is nothing said of vested
rights, or the just and lawful claims of the Indian occupants. If
clemency was granted, it was a matter of grace. The government claimed
the absolute jus disponendi, without any word of argument on the part of
the savages. On the same day that the above resolution for holding a
convention with the Indian tribes was agreed upon, preliminary
instructions to the commissioners were decided upon by congress. It was
determined first, that all prisoners of whatever age or sex must be
delivered up; second, that the Indians were to be informed that after a
long contest of eight years for the sovereignty of the country, that
Great Britain had relinquished all her claims to the soil within the
limits described in the treaty of peace; third, that they be further
informed that a less generous people than the Americans might, in the
face of their "acts of hostility and wanton devastation," compel them to
retire beyond the lakes, but as the government was disposed to be kind
to them, "to supply their wants, and to partake of their trade," that
from "motives of compassion" a veil should be drawn over what had
passed, and boundaries fixed beyond which the Indians should not come,
"but for the purpose of trading, treating, or other business equally
unexceptionable." There were other instructions, but is not essential
to this inquiry that they be enumerated.
It is at once apparent that the commissioners on behalf of the
government who went into the treaties of Fort Stanwix, Fort McIntosh,
and that at the mouth of the Great Miami, if they obeyed the
instructions of congress, gave the Indian tribes to understand that the
United States absolutely owned every foot of the soil of the northwest,
were entitled to the immediate possession of it, and if they allowed the
savages to remain upon it, and did not drive them beyond the lakes, it
was purely from "motives of compassion," and not because these savages
enjoyed any right of occupancy that was bound to be respected by the
government. That these statements are true is proven by the report of
Henry Knox, secretary of war, to President Washington, on June 15th,
1789, in a review of past conditions relative to the northwestern
Indians. The representations of Knox correctly reflected the views of
Washington himself. The Secretary says: "It is presumable, that a nation
solicitous of establishing its character on the broad basis of justice,
would not only hesitate at, but reject every proposition to benefit
itself, by the injury of any neighboring community, however contemptible
or weak it might be, either with respect to its manners or power * * *
The Indians being the prior occupants, possess the right of the soil. It
cannot be taken from them unless by their free consent, or by the right
of conquest in case of a just war. To dispossess them on any other
principle, would be a gross violation of the fundamental law of nations,
and of that distributive justice which is the glory of a nation." He
then says the following: "The time has arrived, when it is highly
expedient that a liberal system of justice should be adopted for the
various Indian tribes within the limits of the United States. By having
recourse to the several Indian treaties, made by the authority of
congress, since the conclusion of the war with Great Britain, except
those made in January, 1789, at Fort Harmar, it would appear, that
congress were of the opinion, that the treaty of peace, of 1783,
absolutely invested them with the fee of all the Indian lands within the
limits of the United States; that they had the right to assign, or
retain such portions as they should judge proper." Again, and during the
negotiations of Benjamin Lincoln, Beverly Randolph and Timothy
Pickering, with the northwestern Indians in 1793, this candid admission
is made of the former errors in the negotiations at Fort Stanwix: "The
commissioners of the United States have formerly set up a claim to your
whole country, southward of the Great Lakes, as the property of the
United States, grounding this claim on the treaty of peace with your
father, the king of Great Britain, who declared, as we have before
mentioned the middle of those lakes and the waters which unite them to
be the boundaries of the United States. We are determined that our whole
conduct shall be marked with openness and sincerity. We therefore
frankly tell you, that we think those commissioners put an erroneous
construction on that part of our treaty with the king. As he had not
purchased the country of you, of course he could not give it away. He
only relinquished to the United States his claims to it. That claim was
founded on a right acquired by treaty with other white nations, to
exclude them from purchasing or settling in any part of your country;
and it is this right which the king granted to the United States. Before
that grant, the king alone had a right to purchase of the Indian
nations, any of the lands between the Great Lakes, the Ohio and the
Mississippi, excepting the part within the charter boundary of
Pennsylvania; and the king, by the treaty of peace, having granted this
right to the United States, they alone have now the right of
purchasing." Thus with perfect candor and justice did we afterwards
admit that our first treaties with the tribes, were founded on a
mistaken and arbitrary notion of our rights in the premises, and without
a due regard to the right of occupancy of the Indian nations. A
government thus frank enough to declare its error, should have been
implicitly trusted by the Indian chieftains, and no doubt would have
been, but for the constant representations of the British agents who for
mercenary gain appealed to their fear and prejudice.
These first errors in our Indian negotiations, however, were extremely
costly to us, and proved to be so many thorns in the side of the
republic. On the 20th of May, 1785, an ordinance was passed by the
continental congress "for ascertaining the mode of disposing of lands in
the western territory," recently acquired under the treaties of Forts
Stanwix and McIntosh. Beginning at the western line of Pennsylvania,
ranges of townships six miles square were to be laid off, extending from
the river Ohio to Lake Erie. These ranges were to be surveyed under the
superintendence of the chief geographer of the United States, assisted
by surveyors appointed from each state, and these surveyors were in turn
placed over the different companies of chain carriers and axemen.
Congress was making strenuous efforts to open up the western country to
purchase and settlement.
But at the first attempts of the government surveyors to enter the Ohio
country, they met with a most determined resistance from the savages.
Brigadier-General Tupper, of Massachusetts, who went to Pittsburgh to
run some lines, was enabled to proceed no farther west than that
station. Captain John Doughty, writing to the secretary of war from Fort
McIntosh, on the 21st of October, 1785, says "They (the Indians) are
told by the British, and they are full in the persuasion, that the
territory in question was never ceded to us by Britain, further than
respects the jurisdiction or putting the Indians under the protection of
the United States. From this reasoning they draw a conclusion that our
claim in consequence of that cession ought not to deprive them of their
lands without purchase. I believe you may depend upon it that this is
the reasoning of their chiefs. I am so informed by several persons who
have been among them. Our acting upon the late treaty made at this place
last winter, in beginning to survey their country, is certainly one
great cause of their present uneasiness." Everywhere the British
partizans of Miamitown and Detroit, in order to keep the tribes in firm
alliance with England, and thus preserve the valuable fur trade, were
pointing to the treaties of Fort Stanwix and Fort McIntosh and telling
the Indians that the Americans were laying claim to their whole country,
and would drive them beyond the lakes. The British agents went further.
According to Captain Doughty, certain emissaries of the British, who
were acquainted with the Indian language and manners, were constantly
circulating among the Indian towns in the Miami and Wyandot country,
making presents to the savages, and appealing to their fears. From the
information of one Alexander McCormick, communicated to Captain Doughty,
it appears that some time during the season of 1785, a grand council of
the tribes was held at Coshocton, on the Muskingum. Tribes were present
from a considerable distance beyond the Mississippi. The object of this
council seems to have been to unite all the tribes and oppose the
American advance. "Two large belts of wampum were sent from the council
to the different nations, holding that they should unite and be at peace
with each other." This looked like a threat of war. Matthew Elliott, an
Indian agent of the British, said in the Shawnee town in the presence of
forty warriors, "that the Indians had better fight like men than give up
their lands and starve like dogs." Simon Girty and Caldwell were among
the Delawares and Wyandots advising them to keep away from the
contemplated treaty at the mouth of the Great Miami.
In the face of all these portentous happenings the adoption of the great
Ordinance of 1787, came as a happy relief. It was apparent now, to the
minds of all right thinking men, that an unfortunate interpretation had
been made of the treaty of peace; that nothing could justify an
unlawful seizure of the Indian possessions. It might be humiliating to
reverse the policy of the government, and give the British agents a
chance to say that the United States had been wrong from the beginning,
but the leading men in the federal councils had determined to adhere to
the advice of Washington, and purchase every foot of the Indian lands.
The potent words of the ordinance that "The utmost good faith shall
always be observed toward the Indians; their lands and property shall
never be taken from them without their consent," were in every sense
truly American and placed the nation four-square to all the world.
As a direct consequence of the new policy toward the tribes, as
evidenced by the Ordinance of 1787, two separate treaties of peace were
entered into at Fort Harmar, at the mouth of the Muskingum river, on
January 9th, 1789, and in the first year of George Washington's
administration. The first treaty was concluded with the Wyandot,
Delaware, Ottawa, Chippewa, Potawatomi and Sac nations; the second with
the sachems and warriors of the Six Nations. About the time of the
adoption of the Ordinance for the government of the northwest territory,
the Ohio Company composed of revolutionary officers and soldiers, had
negotiated with congress for the purchase of a large tract of land in
the Muskingum valley, and on the 7th day of April, 1788, the town of
Marietta, Ohio, had been established at the mouth of that river,
opposite Fort Harmar. The purchase by the Ohio Company was succeeded by
that of John Cleves Symmes, of a large tract of land between the Great
and the Little Miami rivers, and about the first of January, 1789, the
foundations were laid of the present city of Cincinnati. On October 5th,
1787, Arthur St. Clair, of Revolutionary fame, was appointed as the
first governor of the northwest territory, and on July 9th, 1788, he
arrived at Marietta to assume his duties, to organize the government,
and adopt laws for the protection of the people.
The sale of these lands in the Indian country, the planting of these new
settlements, and the increasing tide of men, women and children sweeping
down the Ohio, to settle in Kentucky, seemed to verify all that the
British agents had told the Indians respecting the American intentions.
The depredations on the Ohio river, the plundering of boats, and murder
of immigrants and settlers, were on the increase. Governor St. Clair had
been given instructions by congress on the 26th day of October, 1787, to
negotiate if possible an effectual peace. He was to feel out the tribes,
ascertain if possible their leading head men and warriors and attach
them to the interests of the United States. The primary object of the
treaty was declared to be the removing of all causes of controversy, and
the establishment of peace and harmony between the United States and the
Indian tribes. On July 2nd, 1788, he was given additional instructions
and informed that the sum of twenty thousand dollars had been
appropriated, in addition to six thousand dollars theretofore set aside,
for the specific purpose of obtaining a boundary advantageous to the
United States, "and for further extinguishing by purchase, Indian
titles, in case it can be done on terms beneficial to the Union."
Congress was evidently seeking to carry out the letter and spirit of the
Ordinance, and to extinguish the Indian right of occupancy, by fair
negotiation and purchase.
Time will not be taken here to enumerate the many difficulties
encountered by General St. Clair in the negotiation of the treaty at
Fort Harmar. The violent opposition of Joseph Brant and the Indian
department of the British government will be treated under another head.
Suffice it to say that President Washington always considered this as a
fair treaty. In the instructions given by the government to General
Rufus Putnam in 1792, this language occurs: "You may say that we
conceive the treaty of Fort Harmar to have been formed by the tribes
having a just right to make the same, and that it was done with their
full understanding and free consent."
Tarhe, a prominent chief of the Wyandots, said at the treaty of
Greenville, in 1795, to General Wayne: "Brother, you have proposed to us
to build our good work on the treaty of Muskingum (Fort Harmar); that
treaty I have always considered as founded upon the fairest principles *
* * I have always looked upon that treaty to be binding upon the United
States and us Indians." The same boundaries were fixed between the
United States and the Wyandots and Delawares, as were fixed in the
treaty of Fort McIntosh, and the Six Nations ceded to the government all
lands west of the Pennsylvania line, but this time a valuable
consideration was given for the land, and the United States
"relinquished and quit claimed" to the tribes all claims to the
territory embraced within the Indian boundaries "to live and hunt upon,
and otherwise to occupy as they shall see fit." In other words, and as
Secretary of War Knox says, congress had appropriated a sum of money
solely for the purpose of extinguishing the Indian title, and for
obtaining regular conveyances from the Indians, and this was accordingly
accomplished. One who reads of this great triumph of right and justice,
and this humane and merciful treatment of a race of savages, is
certainly justified in feeling a profound respect and admiration for the
fathers of the republic.