Part 4 (1/2)

”A combination of circ.u.mstances 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 Was.h.i.+ngton 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 Was.h.i.+ngton 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 lat.i.tude 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 inst.i.tutions 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 n.o.ble 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 pa.s.sed by the vote of Georgia, South Carolina, North Carolina, Virginia, Delaware, New Jersey, New York and Ma.s.sachusetts, 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 pa.s.sed 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 a.s.sign, 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 a.s.serted 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 att.i.tude toward the savage tribes, both Was.h.i.+ngton and Jefferson turned a deaf ear. They a.s.sumed 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, Was.h.i.+ngton 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, a.s.signing 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 establis.h.i.+ng them firmly in the ways of peace. ”Tell this, therefore, to your people on your return home. a.s.sure 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 Was.h.i.+ngton 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 friends.h.i.+p with them.”

[Ill.u.s.tration: 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 ma.s.sacres 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 sh.o.r.e 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 ma.s.sacre. 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 const.i.tution 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 p.r.o.nounce 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 s.e.x 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 compa.s.sion” a veil should be drawn over what had pa.s.sed, 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 ent.i.tled 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 compa.s.sion,” 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 Was.h.i.+ngton, on June 15th, 1789, in a review of past conditions relative to the northwestern Indians. The representations of Knox correctly reflected the views of Was.h.i.+ngton himself. The Secretary says: ”It is presumable, that a nation solicitous of establis.h.i.+ng 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 a.s.sign, 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 pa.s.sed 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 towns.h.i.+ps 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, a.s.sisted 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 Ma.s.sachusetts, 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 Was.h.i.+ngton, 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 Was.h.i.+ngton'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 a.s.sume 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 extinguis.h.i.+ng by purchase, Indian t.i.tles, 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.