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."
Thomas Jefferson, Third President of the United States.[ToList]
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.