Category Archives: Treaty Rights

We Live on Stolen Lands, Part II: The Dispossession of the Oneidas.

Many years ago I worked as a consultant for the United States Department of Justice in the Oneida Land Claim case. My job was simple.  The United States had joined the Oneidas in their suit, which asserted that because the State of New York had violated the federal Trade and Intercourse Act, the Oneidas’ sales were null and void.  One of the state’s defenses went something like this: “Well, if we purchased the land illegally, we did so because the federal government allowed us to do so. Therefore the United States is responsible.” I worked for many months through all sorts of documents to demonstrate that not only did New York negotiate some of its cessions with the Oneidas in direct defiance of federal authorities, but that in other instances the United States did not learn of Oneida cessions until long after they had taken effect. New York knowingly violated federal laws designed to regulate the cession of Indigenous land.

We should begin with the Articles of Confederation, the first constitution on the United States. Article IX, the longest in the entire document, spells out the powers of the unicameral national legislature the Articles created.  With regard to Indian affairs, the Articles of Confederation said that Congress had the power “of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits be not infringed or violated.”

That’s a mouthful. When I teach the Articles of Confederation, I ask my students to think about the phrasing of this item.  Which Indians, I ask, are subject to state authority and which are not.  I may show them a map so that they can think about the problem geographically. For instance, during the Confederation, the western boundary of Georgia was the Mississippi River.  Georgia did not cede its western lands to the United States until 1802.  So what about the Indians who lived within what would soon become the state of Alabama before 1802? Georgia claimed that this was their business, and the United States should not interfere. Authorities from the National government could see that Georgia’s aggressive land grabs threatened warfare that the United States could not afford. New York’s history during the Confederation mirrored Georgia’s. We’ve already discussed Massachusetts’ ownership of the right of preemption. Should the Six Nations be considered “members” of the State of New York? They lived within the state’s claimed boundaries, on land claimed by Massachusetts as well, but the state exercised no meaningful authority over them. The point, I try to show my students, is that the language of Article IX was ambiguous and confusing. The limits of federal authority was not clearly drawn. It was confusing at the time. And those states with significant Indigenous populations within their claimed boundaries were aggressive in pursuing Indian policies that threatened to set America’s western boundaries aflame.

            So New York, acting on the self-serving assumption that Article IX placed all authority over Indians affairs in the hands of its government, moved to take control of Indigenous land. Congress, for instance, late in 1783 appointed commissioners to negotiate a treaty of peace with the Six Nations.  New York state officials questioned the right of the federal commissioners to meet with Indians in the state.  The congressional commissioners, New York’s Governor George Clinton wrote, were welcome to meet Indians possessing “territory within the Jurisdiction of the United States,” but the governor demanded “that no agreement be entered into with the Indians, residing within the Jurisdiction of this State (and with whom only I mean to treat) prejudicial to its Rights.” You can read all about this in a document known as the Hough Report.[1]

            The state appointed its own Indian commissioners. They raced to Fort Stanwix (present-day Rome, New York,) and arrived ahead of the congressional commissioners.[2] But those Indians who gathered at Fort Stanwix chose not to treat with the state’s commissioners.  They would work with the men sent by Congress, and Aaron Hill, of the Mohawks, looked forward to the Six Nations transferring the “ancient covenant” that had existed between the Iroquois and the “Great King” (and not the province of New York) to the newly independent United States (and not to the State of New York).[3] The resulting treaty must have disappointed Hill, for the United States sought to punish the Senecas, Cayugas, Mohawks and Onondagas, all of whom had suffered for holding fast to the Covenant Chain during the Revolution.  The Oneidas, who emphasized their contributions to the American war effort, and who downplayed everything else about the war, were secured by the congressional commissioners “in the possession of the lands on which they are settled.”[4]

The Treaty of Fort Stanwix, October 1784, from the National Archives

            The power of the United States government under the Confederation was simply inadequate to control locals determined to seize Indian land, and in this sense, New York’s post-revolutionary history differed little from that of the southern states.[5]  Half a year after the Fort Stanwix treaty, agents from the state of New York sought to obtain a cession of the Oneidas’ lands.  The state’s attempt grew out of a minor land dispute involving a Revolutionary war veteran named John Harper, who had persuaded several Oneidas to sell him twenty-four square miles of territory along the Pennsylvania border.  Grasshopper, a principal sachem of the Oneidas, informed Governor Clinton of the unauthorized sale to Harper and asked that the “Writing might be destroyed.”[6] Clinton told the Oneidas that he wished to “perpetuate that Harmony and Friendship between you and us, by preventing Frauds and Impositions which might be attempted to be committed on you by our white people.”[7]  The Oneidas, he continued, must decide their course with “dispatch.”  He tried to rush them to make a hasty decision.[8]

            The Oneidas did not want to be rushed. That is not how Iroquois diplomatic protocol worked. “Petrus the Minister,” almost certainly the great Oneida leader Good Peter, responded to the governor’s address.  The United States, he said, had guaranteed the Oneidas in the

possession of their lands.  Now he asked the governor to take action to prevent New Yorkers from encroaching on Oneida lands.  Settlers at German Flats, for instance, had taken Oneida lands without payment.  Good Peter now “was willing to lease one tier of Farms in the manner they are done by the White People, along the Boundary Line throughout the extent of our Country, and that People of Influence might be settled on those Farms to prevent Encroachments, and that a person might be appointed to collect our Rents annually.”  Good Peter wanted friendship, and he was willing to lease a small tract if doing so formed a buffer that could protect the Oneida heartland from further encroachment.[9]

            Governor Clinton was not willing to accept these terms.  In fact, he seems to have been furious. Clinton could not tolerate having an Indian community as a landlord.  The Oneidas had believed that they were meeting with the state to brighten the chains of friendship that existed between them, but not to sell their lands.  Clinton told the Oneidas that he felt betrayed.  The Oneidas, out of a desire to placate the angry governor, then expressed a willingness to sell lands along a “line from the Mouth of the Unadilla River with a direct course to the Chenango River and so down the same.”  Peter cautioned the governor. His offer had been premised more upon a desire to preserve “Friendship, than out of a pecuniary reward, and that they could not part with more.”[10] He did not want the governor to misunderstand the Oneidas’ motives. Clinton still was unhappy.  He continued to press for a further cession.  The Oneidas, through the terms of the resulting Fort Herkimer treaty, reluctantly sold to the state 200,000 acres for $11,500.[11]

            The key point is that during the era in which the Articles of Confederation served as the governing instrument of the United States, national authority over the subject of Indian affairs was phrased in ambiguous terms.  Given the weakness of Congress, the states of Georgia, North Carolina, “Franklin”, and New York pursued their own independent Indian policies.  For the Oneidas, the 1785 agreement at Fort Herkimer was only the beginning.

We need to halt for a second before we go further. According to the State’s own records, Good Peter wanted to “lease” Oneida lands rather than sell them outright. We know, however, that he did not say that. He spoke in Oneida. The missionary Samuel Kirkland translated and recorded what he said. Good Peter said something and Kirkland racked his brain and decided that the best term available was “lease.” But think back to what we have said about the Senecas. They were willing to share vast expanses of their land with white settlers while keeping exclusive control of other tracts. I would argue that Good Peter wanted to do something similar. It would be a wonderful enterprise for experts in Haudenosaunee languages to take what their ancestors said in 1784, 1785, 1788 and so on, and “untranslate” their speeches back into their original languages. Then, these Indigenous language keepers can attempt to arrive at a richer understanding of what was said. I will bet you that “lease” is an insufficient term for getting inside what Good Peter and the Oneidas wanted.

This Brings us to 1788

            It seems reasonably fair to conclude that by 1788, the year in which he met with the Onondagas and Oneidas in New York’s Indian territory, Governor Clinton recognized that he presided over a state only nominally under his control.  British troops continued to garrison forts at Oswego and Niagara, despite the provisions of the Treaty of Paris that had formally ended the Revolutionary War in 1783.  These soldiers would not leave New York until 1795.  During the war, two of the eastern counties of the state and part of a third seceded, becoming in the process the independent republic of Vermont.  Talk of other parts of the state breaking away occurred commonly enough for James Duane, a prominent New York politician, to fear that west of the Hudson “a second Vermont may spring up.”[12] Though the punitive Treaty of Fort Stanwix extinguished Iroquois claims to lands largely to the west of New York, much of the territory in the Empire State remained firmly in Indian hands.  Clinton needed those lands for his state. Thus Clinton and his colleagues pursued a three-fold program: They hoped to eliminate “any claim of the United States Congress to sovereignty over Indian affairs in the State of New York,” historian Barbara Graymont wrote; they wanted to extinguish “the title of the Indians to the soil”; and they were determined to eradicate the sovereign status of the Six Nations.[13]

            Doing so would not be an easy task, for as we have seen New York State was not alone in trying to acquire the lands of the Six Nations.  Massachusetts claimed much of the land in what is now New York owing to its colonial charter, which specified no western boundary to its territorial limits.  The two states had worked out a compromise at Hartford late in 1786, with the result that New York exercised legal jurisdiction over the lands in question, but the Bay State retained the right of preemption, or first purchase, to Indian lands in upstate New York.  Massachusetts promptly sold these preemption rights to two speculators, Oliver Phelps and Nathaniel Gorham who, in July of 1788, concluded a treaty with the refugee Mohawks, Oneidas, Onondagas, Cayugas and Senecas at Buffalo Creek.  Phelps and Gorham acquired nearly 2.6 million acres of Iroquois land in western New York for five thousand dollars and the payment of an annuity to the Indians of five hundred dollars.[14]

            In addition to the problems posed by the Phelps-Gorham purchase, Clinton and his associates worried about the activities of the New York Genesee Company of Adventurers, a wealthy and influential group of land barons led by John Livingston.  On the 13th of November, 1787, the Livingston Company negotiated a lease with “the Chiefs and Sachems of the Six Nations of Indians.”  The sachems “leased” to the Livingston Company, for a term of 999 years, “all that certain Tract or Parcel of Land, commonly called and known by the Name of the Lands of the six Nations of Indians, situate, lying and being in the State of New York, and now in the actual possession of the said Chiefs and Sachems of the Six Nations.” Livingston and his associates agreed to pay to the sachems “the yearly Rent or Sum of Two Thousand Spanish Milled Dollars, in and upon the fourth Day of July.” Two months later, the Company negotiated an additional lease with the Oneidas, “for the said term of nine hundred and ninety-nine years, on a rent reserved for the first year of twelve hundred dollars per annum, until it shall amount to fifteen hundred dollars, of all those lands in the said writing described, as the Tract of Land commonly called and known by the Territory of the Oneida Indians.”[15]

            Early in 1788, Governor Clinton and his associates in the State Assembly and Senate undertook a concerted campaign to consolidate their control over the conduct of Indian policy in New York and the disposition of those lands the Iroquois could be persuaded to part with.  Clinton and other New Yorkers wanted to acquire Iroquois lands for the settlement of the state’s obligations to its revolutionary war veterans.  Without question paying off the state’s obligations to its soldiers was important to Clinton, but as historian Laurence Hauptman has shown, other factors were important as well.  The consolidation of state control over its western lands, the development of the state’s economy, and the construction of a state wide transportation system all relied upon New Yorkers first acquiring title to Iroquois lands.  The Six Nations, and the Oneidas in particular, were in the way.[16]

            Early in 1788 the New York State Assembly invalidated the Genesee Company of Adventurers’ “leases” of Six Nations land.  According to a joint resolution approved by the State Senate and Assembly, the leases, by their terms, were for all intents and purposes “purchases of lands, and . . . by the constitution of this State, the said leases are not binding on the said Indians, and are not valid.”  They determined that “the force of the State, shall from time to time, as occasion may require, be exerted to prevent intrusions on and for preserving to the people of this state, their rights to the lands and territories comprehended within the boundaries specified in the said leases.”[17]

            To prevent problems like that presented by the Genesee Company of Adventurers for the future, the Assembly and Senate on the 26th of February enacted a law “for directing the manner of proving deeds and conveyances to be recorded.”  For a purchase of lands to be valid under New York state law, that purchase must be witnessed and recorded and proved “by one or more of the subscribing witnesses to the same, before one of the justices of the supreme court, or a master in chancery, or one of the judges of the court of common pleas in and for the county where such lands and real estate are situated.”  Through this enactment, the state tightened its control over the procedures through which land changed hands.[18]  Furthermore, the Legislature on the 18th of March approved a law “to punish infractions of that article of the Constitution of this State, prohibiting purchases of lands from the Indians, without the authority and consent of the legislature; and more effectually to provide against intrusions on the unappropriated lands of this State.”  No purchases of land from Indians, “within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent of the Legislature of this State.”  Any person who acted without the permission of the Legislature would pay a fine of 100 pounds to the people of New York, “and shall be further punished by fine and imprisonment in the discretion of the court.”[19]

            After taking these steps to ensure that no unauthorized parties acquired Indian lands within the state, and after depriving the New York Genesee Company of its ill-gotten gains, Clinton and his allies in the Legislature appointed commissioners to negotiate treaties with the Six Nations.  There is no evidence that the Iroquois knew that the New York State Legislature had invalidated the Livingston Leases and nothing Clinton or the state commissioners told the Onondagas and Oneidas in the summer of 1788 could have led them to that conclusion. Indeed, the governor and the state’s Indian commissioners continuously warned the Indians that their lands remained in jeopardy unless they negotiated with the state.[20]  The governor accompanied the state commissioners to Fort Schuyler, formerly Fort Stanwix, where they would meet with as many Indians as could be gathered.  The Six Nations, the governor hoped, would “open their ears to the voice of the Great Council of the State of New York,” and meet them to “brighten the Chain and renew the Covenant which had so long bound us together.” Clinton and the commissioners informed the Iroquois that they intended to protect the Indians from the many outside forces that clamored for their land.  Deceptively, the governor and the commissioners hoped to exploit the confusion then reigning in Iroquoia, and obtain from the Six Nations an enormous cession of Indian lands.[21]

            Governor Clinton appears to have wanted to move quickly. Once again, as in 1785, he attempted to rush the proceedings.  He informed the Onondaga sachems, for instance, that “the other public business of the State will not permit me to remain long from home and it will therefore be necessary for such of your people as propose to bee at the Treaty to come on with all possible haste or they may be too late.”[22]  Though there is no evidence that the Iroquois sachems clearly recognized, understood, or cared about the nature of that “public business,” Clinton indeed had plenty to worry about.  New Yorkers overwhelmingly had opposed the new Federal Constitution drawn up at the convention held in Philadelphia in the summer of 1787, and the governor (albeit quietly) led the “Antifederalist” forces within his state.  Advocates of a stronger national government felt the need to replace the Articles of Confederation for a number of reasons, but the “father of the Constitution,” James Madison, listed high on his list of  “Vices of the Political System of the United States” the aggressive Indian policies pursued by several of the states, including New York.  Article I, Section 8, of the new Constitution replaced the vague and ambiguous language of Article IX of the Articles of Confederation, with an assertive statement of federal authority over the conduct of Indian affairs: once the Constitution became the “supreme law of the land,” Congress would possess the exclusive authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[23]

Governor George Clinton. Not a good guy.

            New Yorkers had ratified the new constitution, reluctantly, in July, only a few short months before the gathering at Fort Schuyler.  When word of the Constitution’s ratification in New Hampshire and Virginia arrived earlier that month, the Antifederalists of New York realized that they no longer could safely oppose the Constitution: the United States would exist under a new and more powerful frame of government.  The question posed to the delegates at Poughkeepsie was now no longer whether or not New Yorkers would approve the Constitution, but whether or not they would become a member of the Union now that the requisite number of states had ratified.  Complete independence was never considered by New York’s Antifederalists, who recognized that they would soon have to work within the new federal system.  Governor Clinton must have felt the need to acquire for New York as much of the Iroquois estate as he could before the new government went into effect, and the rules of Indian diplomacy changed.[24]

            New York’s urgent appeal to the Six Nations was received by a people still recovering from the ravages of the Revolutionary War. Although the Oneidas suffered comparatively less than their brothers in the Confederacy, they may have been confused or concerned about Governor Clinton’s intentions.  Certainly representatives of the Genesee Company of Adventurers tried to disrupt the proceedings at Fort Schuyler.  A Seneca named Onyegat told New York’s Indian commissioners that men from the Genesee Company had told him that “the Governor’s Business at this proposed Treaty is to purchase your Lands, but you have leased them to us.  He means to pay you all at once for them, and then in a few Years to drive you off and tell you that you have no Property here.”[25]  A Frenchman named Dominique Debarges, a fur trader from Montreal and a Genesee Company agent, along with an Indian named “the Infant,” told sachems on their way to Fort Schuyler that “it will be your Destruction if you go down to the Treaty called by the Governor of New York.  I know his intentions,” Debarges continued, and “when you return you’ll have no Place to set your Foot on.  You will be like wild beasts which are hunted.” Debarges also told the Indians that “the Governor had his troops collected at German Flatts, ready to fall upon them as soon as they returned.”[26] The Oneidas, as well as the Onondagas, likely heard these rumors; the evidence suggests that the constituent members of the Confederacy regularly shared information and intelligence.[27] That the missionary Samuel Kirkland served as an interpreter at Fort Schuyler could only have further confused the Indians attending the council. The minister and missionary had served as an interpreter at the federal Fort Stanwix Treaty in 1784, and his presence at Fort Schuyler may have done much to grant a veneer of legitimacy to Clinton’s efforts and supported the Governor’s contested claim to represent the only jurisdiction with a legitimate right to negotiate with the Six Nations.[28]

            The state commissioners chose to treat with the Onondagas first. The Oneidas returned home, and would not return to Fort Schuyler until the meeting with the Onondagas had been completed. If you are interested in the dispossession of the Onondagas, you can read the article I published a while back in the journal New York History. By the middle of September, that business was finished, and the Oneidas returned to the fort. 

            Speaking through Kirkland, the Oneida spokesman Good Peter responded to the Commissioners’ invitation.[29] He expressed to the Governor and the state’s men his understanding of the purpose of the gathering. Good Peter wanted to protect the Oneidas’ lands.  He made clear to Governor Clinton that “in whatever Land we should cede to you, our Warriors should have the Privilege of Hunting and Fishing, and that a Line should be drawn round the Part we should reserve to ourselves to secure it to us and our Posterity.” In essence, Good Peter, like the Onondaga sachem Black Cap, and like the Senecas at Big Tree, offered to share the bulk of the Oneidas’ lands with the citizens of the state of New York in return for an annual payment. The remainder of their lands the tribe would keep for their own exclusive use.[30]

            Governor Clinton told the Oneidas that he desired to protect their lands from the Livingston Adventurers, who “had without any Authority from us, obtained from you a Lease of your Lands.”  He had, he said, no interest in buying lands from the Oneidas, for “we have already more lands than we have People to settle on them.”  His hope was to set things right, “to meet you at this Council Fire, and by a new agreement place Matters on such a footing as to prevent these Things for the future.”[31] This pleased Good Peter, who responded to the Governor’s speech on the 20th of September.  He was happy to hear that the state did not want the Oneidas’ land, and that New York would protect his people from the Livingston Company.  “The Wind,” he told Clinton, “seems always to blow and shake this beloved Tree, this Tree of Peace.” Good Peter recalled that in 1784 “the United States” had “Planted the Tree of Peace with four Roots, spreading branches, and beautiful leaves, whose top reached the Heavens.” He feared “that by and by some Twig of this beautiful Tree will be broken off. I Love this Tree of Peace as my Life, and my Protection. I know you love it.” To preserve this peace, Good Peter concluded, the Governor must “punish these disorderly People.”[32]

            The point is simple. Throughout his speeches at Fort Schuyler that September, and consistently in his recollections of the treaty four years later, Good Peter believed whole-heartedly that the Oneidas had met with the governor and the state’s Indian commissioners to protect his people from dispossession by the Livingston Company.  Indeed, at the close of the council, Good Peter proudly announced to Governor Clinton that “My Nation are now restored to a possession of their Property which they were in danger of having lost.” The 1788 Oneida treaty, Good Peter continued, secured to the Oneidas “so much of our Property which would otherwise have been lost.” Clearly Good Peter would have had no reason to make this statement if he knew, prior to the meeting at Fort Schuyler, that the Livingston leases had been invalidated by the State Legislature.[33]

            The 1788 transactions show the determination of Governor Clinton and the State’s appointed Indian Commissioners to acquire Onondaga and Oneida lands.  As a result of the treaties with the Onondagas and Oneidas, as interpreted by the state, New York could finally begin the long-delayed process of distributing bounty lands to its veterans.[34] During the Oneida land claim litigation, one of New York’s expert witnesses argued that in 1788 the Oneidas and Onondagas willingly ceded to the state all their lands in 1788, and that “New York State then granted back to each tribe a portion of the lands ceded.”] In this logic, New York “created” the reservations, and that therefore the state possessed some nebulous right to extinguish the Indians’ title to these lands. The problem is that this truly unprecedented argument is entirely unsupported by any reliable evidence.  At Fort Schuyler, for instance, the Oneida spokesman Good Peter expressed his happiness about the Onondagas’ treaty, “and that Part of their Country which they have reserved to themselves is secured to them.” Good Peter, we should remember, told Clinton as well that the Oneidas would retain hunting and fishing rights in whatever lands they ceded to the state, and that “a Line should be drawn round the Part we should reserve to ourselves.[36]  Clearly, in Good Peter’s view, it is the Onondagas who are doing the reserving, allowing the state to share with them a large portion of their lands in return for an annual payment and keeping the rest exclusively for themselves.  The Oneidas appear to have wanted to lease their lands, not sell them, and to reap from landlordism what they could no longer acquire through trade. The Onondagas, Clinton told the Oneidas, did “cede to us all their Lands, reserving to themselves a convenient Tract for their own Use and Habitation, where none of our People should come to settle.”[37]

We will continue the story of the Oneidas’ dispossession next week.


[1] Governor George Clinton to Richard Butler and Arthur Lee, 13 August 1784, Hough, ed., Proceedings, 21.

[2] William N. Fenton, The Great Law and the Longhouse: A Political History of the Iroquois Confederacy, (Norman: University of Oklahoma Press, 1998), 609.

[3] Henry S. Manley, The Treaty of Fort Stanwix, 1784, (Rome, NY, 1932), 88; Tiro, “People of the Standing Stone,” 146; Laurence Hauptman, Conspiracy of Interests: Iroquois Dispossession and the Rise of New York State, (Syracuse, 1999), 28; Graymont, Iroquois and the American Revolution, 272.

[4] Kappler, comp, Indian Affairs, Treaties and Laws, 5-6.

[5] Hauptman, Conspiracy of Interests, 27.

[6] Hough, ed., Proceedings, 73.

[7] Clinton’s Speech to the Oneidas, 23 June 1785, Hough, ed., Proceedings, 86.

[8] Ibid., 87.

[9] Ibid., 92-93.

[10] Ibid., 102-103.

[11] Ibid., 107; J. David Lehman, “The End of the Iroquois Mystique: The Oneida Land Cession Treaties of the 1780s,” William and Mary Quarterly, 3d ser., 47 (1990), 536-538.

[12] Duane quoted in Lehman, “Iroquois Mystique,” 523.  See also Alexander, Revolutionary Conservative, 64.

[13] Barbara Graymont, “New York Indian Policy After the Revolution,” New York History, 58 (1976), 440.

[14] The “Agreement Between the Commissioners of the Commonwealth of Massachusetts and the Commissioners of the State of New York, 16 December 1786,” is housed in the New York State Archives in Albany; Notebook containing Copies of Deeds from the Five Nations to Oliver Phelps and Nathaniel Gorham, New York State Library, Albany, NY, Manuscripts, 11274; Christopher Densmore, Red Jacket: Iroquois Diplomat and Orator, (Syracuse, NY, 1999), 24-25. A copy of the Hartford Compact can be found as well in the Report of the Special Committee to Investigate the Indian Problem of the State of New York, Appointed by the New York State Assembly, 1888, Assembly Document 51, (Albany, 1889), 105 (Hereafter cited as Whipple Report).

[15] Journal of an Assembly of the State of New York, at their Eleventh Session, Begun and Holden at Poughkeepsie in Dutchess County, the Ninth Day of January, 1787, (New York, 1788), 56.  Hough has different figures, and I am not certain how best to account for the discrepancy.  Of the Oneida lease, Hough says that the “lands were leased for a term of nine hundred and ninety-nine years, for a rent of $1000 for the first ten years, and increasing after that time at the Rate of $100 annually until the Sum amounted to $1500, which was to remain the Rent afterwards.” See Hough, ed., Proceedings, 123n.

[16]  Hauptman, Conspiracy of Interests, Part One.

[17] Assembly Journal, Eleventh Session, p. 74.  Journal of the Senate of the State of New York, at their Eleventh Session, Begun and Holden at Poughkeepsie in Dutchess County the eleventh day of January, 1788, (Poughkeepsie, NY, 1788), 35.

[18] “An Act for Directing the Manner of Proving Deeds and Conveyances to be Recorded,” 26 February 1788, New York Session Laws, Eleventh Session, Chapter 44, p. 689.

[19] New York Session Laws, Eleventh Session, Chapter 85, p. 810-811; Assembly Journal, 11th Session, 106, 109, 121; Senate Journal, 11th Session, 57-59, 63, 68.

[20] Governor Clinton told the Onondagas, for instance, that it was wrong for them to have entered into a lease agreement with the Livingston Company.  The Livingson Company, he warned, “have promised you Money and a yearly Rent. If they refuse to pay you, how are you to compel them to it? It is not reasonable to expect that the State will interfere in your behalf in a Business conducted against their Will. Those people who settled upon your Lands, they will soon become too strong for you, and if you should go to War with them, their Scalps will neither cloath nor feed you.” See Hough, Proceedings, 185.

[21] Assembly Journal, 11th Session, 89; Senate Journal, 11th Session, 50; “Proceedings of the Commissioners Appointed by the State of New York to Hold Treaties with the Indians within that State, Under Statute Passed on 1 March 1788,” mss., Albany Institute of History and Art, Albany, NY; Lehman, “Iroquois Mystique,” 541; Laurence M. Hauptman, “New York State’s Assault on the Oneida Tribal Estate: The 1780s,” Paper Presented at the Oneida Historical Conference, Syracuse, New York, June 2002), 8-9, 12; Jack Campisi, “The Oneida Treaty Period, 1783-1838,” in The Oneida Indian Experience: Two Perspectives, (Syracuse, NY, 1988), 53.

[22] “Proceedings of the Commissioners,” 54.

[23] James Madison, quoted in Jack P. Greene, ed., Colonies to Nation, 1763-1789: A Documentary History of the American Revolution,(New York, 1967), 514.

[24] For the Antifederalists in New York state, please see Edward Countryman, A People in Revolution: The American Revolution and Political Society in New York, 1760-1790, (Baltimore, 1981), 273-276; Jackson Turner Main, The Anti-Federalists: Critics of the Constitution, 1781-1788, (Chapel Hill, NC, 1961), 233-242; Steven R. Boyd, The Politics of Opposition: Antifederalists and the Acceptance of the Constitution, (Millwood, NY, 1979), 131-134; John P. Kaminski, George Clinton: Yeoman Politician of the New Republic, (Madison, WI, 1993), 135-138, 152-166.  We must take seriously the grounds of Antifederalist discontent with the new federal Constitution. New York’s Antifederalists, in particular, feared that the new national government created by the Constitution would be too large, and that it would destroy the vital protections of the citizens’ interests that existed in a truly representative government.  Though the National government never became the leviathan that the Antifederalists feared, those fears were real, as numerous historians have pointed out, and we as historians ought to take them seriously. In an interesting discussion of New York’s response to the Nullification Crisis of 1832, historian Saul Cornell argued that while the state rejected South Carolina’s controversial and dangerous position, New Yorkers defended their “own commitment to states’ rights federalism grounded in the tradition of dissent that evolved between 1788 and 1828.” See Cornell, The Other Founders: Anti-federalism and the Dissenting Tradition in America, 1788-1828, (Chapel Hill, 1999), 298-302.

[25] Hough, ed., Proceedings, 182-183.

[26] Ibid., 191-192.

[27] A number of recent works on the Iroquois emphasize the importance of the contacts between the constituent communities of the Six Nations.  See Richter, Ordeal of the Longhouse, passim., for an example of this phenomenon during the colonial period, and Tiro, “People of the Standing Stone” for the revolutionary era. 

[28] My understanding of Kirkland’s role as an interpreter has been influenced by Karim Tiro’s fine article, “James Dean in Iroquoia,” New York History, 80 (October 1999), 391-422.  Tiro argues that Dean’s employment by different agencies “contributed to the atmosphere of confusion and uncertainty surrounding the land deals—a situation that ultimately made it more difficult for Natives to resist dispossession.” (quote on p. 415). A similar process seems to have been at work with Kirkland’s involvement in numerous treaties. On Kirkland as a land speculator and for his agency in Iroquois dispossession, see Hauptman, Conspiracy of Interests, 37-45, 70-72.

[29] In the opinion of historian Laurence Hauptman, the leading expert on Iroquois history in New York State, the principled and devout Kirkland of the pre-Revolutionary period had by 1788 “compromised his principles under the pressures of family and mission financial exigencies and under his all-consuming passion to create the Hamilton-Oneida Academy.”  See Hauptman, “Command Performance,” 44.

[30] Hough, ed., Proceedings, 221.  After the Onondagas had completed negotiating their treaty with the state of New York, a treaty they appeared to have viewed as something akin to a joint-use agreement, Black Cap thanked Governor Clinton for helping his people hang on to their lands.  “You have now secured to us,” Black Cap told the Governor, “what we consider as a territory sufficiently large for us and all our Posterity to live upon, and every Privilege arising from our whole Territory we enjoy and shall continue to enjoy.” Black Cap believed that the land still belonged to the Onondagas, and that the written treaty formally stated this. See Hough, ed., Proceedings, 204-205.

[31] Ibid., 223-224.

[32] Ibid., 228-229.

[33] Ibid., 235. See also Lehman, “Iroquois Mystique,” 544 and Anthony Wonderly, “’Good Peter’s Narrative of Several Transactions Respecting Indian Lands’: An Oneida View of Dispossession,” New York History, 84 (Summer 2003), 237-276.

[34] Ruth L. Higgins, Expansion in New York, with Especial Reference to the Eighteenth Century, reprint, ed., (Philadelphia, 1976), 106.

[36] Hough, ed., Proceedings, 221 (emphasis added).

[37] Ibid., 225 (emphasis added).

We Live on Stolen Lands

            In November of 1794, the six Iroquois Nations entered into a treaty at Canandaigua with the United States that recognized their Nations’ right to the “free use and enjoyment” of their lands. That phrase is used three times in the treaty, thus making it central to the entire diplomatic accord. In exchange for a promise that they would never join with those Indigenous peoples who had warred against the United States, and a specific grant of permission allowing citizens of the United States to pass through their lands “for the purposes of travelling and transportation,” the Six Nations were guaranteed an annuity of $4500, the return of lands along the Niagara River that they had ceded a decade before, and the recognition of their sovereignty and nationhood: the free use and enjoyment of their lands.

The National Archives copy of the Treaty of Canandaigua. Look closely and you will see that both the Senate’s ratification, and the President’s proclamation of the treaty, are physically stitched on to the document.

            There are two principles I would like you to understand before we go any farther, one derived from the American constitutionalism, and the other from the history, culture, and traditions of the Haudenosaunee. For the first, I will have you think for a second about what the United States constitution says about the rights of Indigenous peoples. There is the Supremacy Clause, of course, which states that treaties and acts of congress are the “supreme law of the land.” That passage does not specifically mention Indigenous peoples, but its relevance should be clear enough.  There is also the passage in Article I, Section 8, through which “we the people” granted to the Congress the right to “regulate commerce” with the Indian tribes. We call this the Indian Commerce Clause.

            The language in the Constitution, my students find when they read it for the first time in their lives, is brief, skeletal. It was left up to the first federal congress to enact the legislation necessary and proper to carry these constitutional provisions into effect. In 1790, Congress passed into law the first of several federal Trade and Intercourse Acts. The law was revised periodically between 1790 and 1834, but one principle remained clear: The United States claimed no real authority over what was coming to be referred to as “Indian Country.” The Trade and Intercourse Acts regulated the conduct of white people, not Indians.  You want to trade with an Indian? You need a license from a federal agent. If you want to purchase land, the negotiations must be overseen by the United States and resulting agreement ratified by a two-third vote of the United States senate. Without that approval and oversight, the sale was null and void. The United States worked to regulate the conduct of its own citizens. It claimed no authority over the internal workings of Indigenous nations.

            The second principle goes by the name Guswenta, and it is represented by the Two-Row Wampum. Parallel lines that do not cross, the lines represent a European ship and an Indigenous canoe. They travel the same river, and share the same space, yet the lines never cross. Non-interference, independence, and autonomy: You do not dictate to us, the Iroquois might have said, and we will exercise no authority over you. Guswenta, originally a generic word representing a belt of wampum, came to be applied to this specific belt which justly reflected the cardinal values of Haudenosaunee diplomats.

            So, to come back to the Treaty of Canandaigua, we have an agreement recognizing an Indigenous right to the “free use and enjoyment” of the land that is consistent with both these formulations. Think of it this way: You have a sheet of white paper in front of you. That white sheet represents all the land from the Genesee River west to the Niagara River and Lake Erie, and from Lake Ontario in the north to the boundary of Pennsylvania. In that vast tract, the Senecas can do what they want. Americans had no power there save for whatever the Senecas gave to them, and in this treaty, that grant to the Americans is pretty limited. Free use and enjoyment: keep thinking about what that means.

            Despite Canandaigua, settlers, and more importantly land developers, coveted the rich, dark soil of western New York. The Senecas numbered a bit over 2000 people, but there were many times that number of land-hungry Americans who wanted their land. They were ready to seize the opportunity. They were willing to come and ready to take it. So, in 1797, at Big Tree near today’s Geneseo, New York, the Senecas, the westernmost of the Six Iroquois Nations, entered into a treaty with Robert Morris and his son Thomas, overseen by a federal agent in accord with federal law.

            A little background is in order here. First of all, much of New York was claimed by Massachusetts, the colonial charter of which specified its northern and southern bounds but not its western. So, if you drew those northern and southern lines across the continent westward you can envision the breadth of Massachusetts’ claim. (The state of Connecticut claimed a chunk of northern Pennsylvania for similar reasons). Massachusetts and New York worked out an agreement in Hartford in 1786 which gave New York jurisdiction over the disputed territory, and to Massachusetts the right of preemption. Preemption was essentially the right to first purchase of the land, a type of title that might sit dormant until the Indians’ right of occupancy was extinguished.  Massachusetts emerged from the Hartford agreement positioned to tell the Iroquois that because of our preemption rights, you can only sell your lands to us.

            Claiming a preemption right over Indigenous land was consequential. It certainly had the practical effect of reducing the value of those lands by eliminating any other potential buyers. Preemption was based on notions that Europeans had a claim to indigenous land that needed only the removal of the Indians’ claim to become real. Europeans, the logic went, had title, and Indigenous peoples a right of occupancy. Where did this seemingly dotty notion come from? From the same place men of small imagination always have found justification for their awful beliefs.  It’s called the “Doctrine of Discovery.” While more has been made of the Discovery Doctrine than I think is warranted, it derived from the Old Testament.  Europeans owned title to the land because at the time they found it, Indigenous people were not making use of the land properly. Indigenous peoples did not break turf and twig, clear the land and plow it, and follow the Biblical command to make it fruitful. This is one reason depictions of Indigenous peoples as wanderers and hunters and nomads are not only factually incorrect, because they did plant crops and live in horticultural settlements, but pernicious as well.

            Especially when preemption rights became something that could be bought and sold. Massachusetts sold its preemption rights to Oliver Phelps and Nathaniel Gorham. They acquired a lot of Haudenosaunee land east of the Genesee before their enterprise went belly up. Massachusetts foreclosed and sold the preemption right to the remaining lands to Robert Morris, widely considered the most important financial policy maker of the American Revolution. Morris hoped to sell these rights to the Holland Land Company, but before they would pay, they insisted that Morris eliminate the Indians’ right of occupancy.  Morris was ill, so he sent his son Thomas to Big Tree, today’s Geneseo, to negotiate a treaty with the Senecas.

            The Big Tree Treaty council was an ugly affair. Morris bribed people and dispensed alcohol freely. In the end, he emerged with a document that granted him ownership of all Seneca lands except for twelve reservations scattered throughout the western quarter of New York State. Come back to your piece of paper. Draw twelve circles on the paper. These can represent the twelve reservation defined in the Big Tree treaty. Everything not inside one of these circles, the treaty reads, the Senecas gave up to Robert Morris in exchange for the annual payment of the interest on a $100,000 investment in stock in the Bank of the United States.

Why would the Senecas do this? Some historians have emphasized the bribes and the alcohol.  There can be no denying how important these were to accomplish the treaty. But I would suggest you look at it another way. Tens of thousands of Americans were on the move westward. A handful of Senecas stood in the way. The Senecas could not halt the onslaught.  The Sullivan-Clinton campaign of 1779, a military invasion of their homelands, taught them the price of resistance. They faced a dilemma. They could receive something for their land or lose these lands outright to the men who were coming to take them. The Senecas met the Americans with limited bargaining power.

            But think about this: In the “Rough Memoranda of the Treaty of Big Tree,” a record of the proceedings housed in the O’Reilly Papers at the New York Historical Society, Thomas Morris told the Senecas that if they agreed to sell their lands, that we the purchasers “do not mean that you should all rise from your seats and abandon your villages but that you should relinquish that part which is totally unproductive to you, reserving to yourselves in and about your different settlements only as much is necessary for your actual occupation.”  The dozen circles that I asked you to draw on that page: each one of them was a settlement site, a Seneca town, of cultural and historical significance to them and that they reserved for their own exclusive use.

            The Senecas made good use of this land. They reoccupied much of what they had fled from during the Revolution. In October of 1791, the missionary Samuel Kirkland completed a census of the Iroquois.  For the Senecas residing on the west side of the Genesee River, he mentioned “six small villages.”  “Kanawages—about 20 miles south of Lake Ontario containing 14 wigwams—Oahgwataiyegh alias hot-bread their chief.  112 lived there. 120 people were at Big Tree’s town, “about 8 miles farther south, containing 15 houses.   Big tree, alias Kaondowanea their chief.” “Little Beard’s town, about five miles south and on the great flatts—containing 14 wigwams.”  112 people lived there. Also, “the town upon the hill, about 3 miles south & near the forks of the Genesee River—containing 26 houses, under the direction of Big Tree & Little Beard.” 208 lived there. There was also “Onondaough 12 miles southwardly lyong on the west branch of the Genesee—6 houses–& under the direction of Big Tree & Little Beard.” 48 lived there.  Finally there was “Haloughyatilong—12 miles farther south–& on the forementioned branch containing 22 houses.” Population here was 176.  Furthermore, there were 25 houses of Tuscaroras with a population of 208 living near Big Tree. This would be the site of Ohagi.

            Meanwhile, there were 2048 Senecas, Onondagas, and Cayugas residing on Buffalo Creek. Francois-Alexandere-Frederic La Rochefoucauld-Liancourt, a French observer who traveled through “the Country of the Iroquois” in 1795, visited the towns that would be recognized as Seneca ground in the Big Tree Treaty.   Rochefoucauld-Liancourt visited Canawaugus, where an “Indian, who speaks French, is waiting for us.” At “Captain Watsworth’s” in Geneseo, uphill from Little Beard’s Town and Big Tree, he and his companions noticed how “several parts of the forest have been burnt down by the Indians, who possessed this country from time immemorial.”  As he traveled, he said, “we frequently traced or met with Indian camps, as they are called, i.e. places where troops of them, who were either hunting or travelling, had passed the night.” Wadsworth’s house was a vile hole filled with noisome odors. Liancourt encountered Wadsworth “undergoing the operation of hair dressing by his negro woman,” after he “had just sold a barrel of whisky to an Indian.”  Liancourt learned that the Indians were easy prey to unscrupulous traders.  “A little whisky will bribe their chieftains to give their consent to the largest cessions; and these rich lands, this extensive tract of territory, will be bartered away, with the consent of all parties, for a few rings, a few handkerchiefs, some barrels of rum, and perhaps some money, which the unfortunate natives know not how to make use of, and which, by corrupting what little virtue is yet left among them, will, ere long, render them completely wretched.”

            Liancourt traveled twelve miles and visited Squawky Hill and another Seneca village on “Mountmorris.”  “They both contain Indian villages. That situate on the former height consists of about fifteen, and that seated on the latter of about four or five small log-houses, standing close together, roughly built, and overlaid with bark.  In the inside appears a sort of room not floored; on the sides they construct shelves, covered with deer skins, which serve as their cabins or sleeping places.  IN the midst of the room appears the hearth, and over it is an opening in the roof to let out the smoke.” 

So back to the council at Big Tree. Thomas Morris resumed his speech . He said

What then Brothers you may ask will be the advantages of your selling—I will tell you Brother. You will receive a larger sume of money than has ever yet been paid to you for your lands.. This money can be so disposed of that not only you but your children and your Children’s children can derive from it a lasting benefit. It can be placed in the Bank of the United States forever whence a sufficient income can annual be delivered by the President your Father to make you and your posterity forever, then the wants of your old and poor can be supplied and in times of scarcity, your nation can be fed and you will no longer experience the miseries resulting from nakedness and want. Brothers, the white people do not want your lands for the purpose of hunting but for that of cultivation—the Great Spirit has implanted in you a desire to pursue the beasts of the forest and in us to cultivate the soil.  This cultivation, Brothers, does neither diminish nor destroy the Game, your hunting grounds will be of as much advantage to you in the hands of the white People as in your own, for you can reserve to yourselves the full and ample right of hunting over them forever. . . . .By selling your Lands therefore Brothers and reserving to yourselves the perpetual right of hunting on it then you retain every solid advantage for the comforts of life that which at present produces you nothing.”

In the actual text of the Big Tree treaty, 15 September 1797, we are told that the Senecas reserved for their exclusive use some lands, gave up others, “Excepting and reserving to them, the said parties of the first part and their heirs, the privilege of fishing and hunting on the said tract of land hereby intended to be conveyed.

The US believed that by entering into this agreement, Morris had paid funds that extinguished the Indians’ right of possession.  Morris had obtained the right of preemption from the Commonwealth of Massachusetts and, with the Indians’ occupancy right paid for, the US believed that he was free to transfer that land to the Holland Land Company, which was better equipped than he to begin the complicated work of settling townships and overseeing its sale. Morris, the United States, Massachusetts and New York officials were remarkably consistent on this point and no significant disagreements existed.

Within a year of the treaty, Seneca women had complained that some of the reservations were too small.  Speaking for the women in a 1798 council at Big Tree, Red Jacket said they were the owners of the land, “& now we are sorry our seats are so small, as we Women since the bargain it has given our minds much uneasiness to think our seats so small.” I think it is important to look into this, because clearly some Senecas wanted to renegotiate.  In response to these demands, adjustments were made to the Tuscarora and Cattaraugus reservations. In 1801, Red Jacket made it abundantly clear that many of his followers had followed the advice of the United States.  They expected, as a result of Canandaigua and the Big Tree annuity, “that we should be furnished with farming utensils for cultivating the ground & raise wheat & other grain—that we must have spinning wheels & learn our children to spin & knit—we were told we must make use of Cattle instead of moose, Elk etc & swine instead of beans, sheep, in place of dear, etc. etc.”

            Red Jacket noted that “We finde ourselves in a situation which we believe our fore Fathers never thought of—instead of finding our game at our doors we are obliged to go to a great distance for it, & then finde it but scarce compared to what it us’d to be.”  White people, Red Jacket continued, “are seated so thick over the Country that the dear have almost fled form us, and we finde ourselves obliged to pursue some other mode of getting our living, and are determined in all our Villages to take to husbandry, and for this purpose we want to be helped.”  This is such an important insight: Red Jacket expected for his people to be able to draw subsistence from the lands they ceded, but now they found so many non-native people settling there that it had altered the game potential of the land. He complained of American violations of Big Tree.

            So let’s take stock. You have your paper with 12 circles drawn on it. Imagine that you have shaded every inch of your page that is not one of those circles gray.  Each of those circles is a Seneca reservation, in which there is no legitimate American right or claim to power to limit in any way the Senecas’ “free use and enjoyment of these lands.” Settlers, under the direction of the Holland Land Company, have access to everything not in a circle with one important exception.  The Senecas retained the right to hunt and fish over the entire extent of the ceded lands. Everything you have shaded gray is territory these treaties guarantee to Seneca hunters.

Now, it is time for another Haudenosaunee concept, and that is the division of physical space into woods and clearings. These divisions, I suppose, can be drawn too starkly, but in general I believe they retain a great deal of value. Haudenosaunee people conceived of the world as divided into woods and clearings. Women exercised enormous influence in the clearings. This is where they gave birth, reared children, and planted and tended crops. It is here where the clan mothers would appoint the men who would lead their communities as sachems. Men’s realm was the woods. It was here where they hunted and, at times, fished. They passed through the woods to engage in warfare and take captives. If woman’s place in the cosmos was defined by the power to create life, men were life-sustaining killers as hunters and warriors. Indigenous communities claimed specific parts of the woods. These claims could be contested and fought over.

            Here is the point: In the woods, men hunted, fished, and fought. Ownership was defined by use and use was defined by gender. To say that the men of an Indigenous community have the right to hunt and fish on certain lands, I hope you see, is analogous to saying that the community to which they belonged owns the land. It is possible to argue, then, that at Big Tree the Senecas obtained recognition of their right to the exclusive use of the clearings, where white people could not intrude and where Americans exercise no power and authority, and that they willingly would allow white settlers to share with them the woods. This helps us make sense of Red Jacket’s complaints a year after Big Tree about the Americans’ alteration of the gaming potential in the Woods and, a year later, Handsome Lake’s denunciation of land sales in the Gaiwiio, the new religion that the prophet Handsome Lake brought to the fore.

Handsome Lake preaching at the Tonawanda Longhouse. Painting by Ernest Smith, housed at the Rochester Museum and Science Center.

            Twelve circles. Twelve towns. Twelve places that meant as much to the Senecas as any place has ever mattered to you. Buffalo Creek, Allegany, Tonawanda, Cattaraugus, Big Tree, Squawky Hill, Canawaugus, Gardeau.  I could go on. I hope you drew those circles in pencil, because now we enter a period where we begin to erase the circles and shade that space they occupied gray: a strip along the Niagara River and Little Beard’s Town along the Genesee in 1802. Familiar themes appear in these cessions. The actual language of the 1802 mile strip treaty notes that the Senecas sold the land, but reserved “to themselves…the right and privilege of encamping their fishing parties on the beach of said river, for the purpose of fishing, which is the common right of both parties, and to be enjoyed without hindrance or interruption from either; and while there encamped, to use the drift-wood for fuel, bit not to trespass on or injure, the proprietor or proprietors of the adjacent lands.”  They also reserved the right to cross on any ferries and any bridges to be built in the future without tolls.

Map of the Squawky Hill Reservation

            You can erase two circles. Shade where they were gray.

            Then we have the large sale of 1826. Again, a little background is in order. In the early 1800s, the Holland Land Company sold the preemption rights to the remaining Seneca reservations to an entity called the Ogden Land Company.  To be clear, that means that the Holland Company sold to the Ogden Company the right to obtain all the land in the remaining circles you have drawn on the page. The Ogden Company operated essentially in two parts of the state: around the larger reservations in the west—Allegany, Cattaraugus, Buffalo Creek, and Tonawanda– and in the Genesee Valley, where the lands set aside at Big Tree in 1797 were much smaller.  In the west, Senecas had forcefully resisted any attempt to purchase their lands.  In the Genesee Valley, this resistance was more difficult to maintain. But owing to bribes paid out by Horatio Jones and Jellis Clute, and the pressure white squatters placed on Seneca lands in the Genesee Valley, by the middle of the 1820s, some there were willing to contemplate a sale of lands.  Indeed, in 1823 in Moscow (today’s Leicester, NY), Mary Jemison ceded all but two square miles of the Gardeau Reservation to John Greig and Henry Gibson.  Greig was an employee of the Ogden Land Company.  The cession, acquired for $4286 (less than .30 an acre) was never submitted to the Senate for ratification.

            How did this happen and how did Mary Jemison have the standing to make this sale? According to historian Larry Hauptman, in April of 1817 Micah Brooks and Thomas Clute successfully persuaded the New York State Legislature to pass a bill making Jemison a citizen of the State of New York and “confirming her title to the Gardeau Reservation. Four days after this bill was passed, according to Hauptman, in return for $3000 and a mortgage to secure $4286, the aged Jemison executed a deed of seven thousand acres on the east side of the reservation to the same Micah Brooks and Jellis Clute.  At the urging of John Jemison, Mary’s son, Mary agreed, because of her advanced age and her inability to manage her property, to hire Thomas Clute as her guardian.  In payment for his services Thomas Clute was given a great deal of land on the west side of the Gardeau Reservation. On August 24, 1817, Mary Jemison leased all of the remaining Gardeau reservation, except for four thousand acres and Thomas Clute’s lot, to Micah Brooks and Jellis Clute.  Jemison’s words are revaling about this transaction: ‘Finding their [Brooks and Clute] title still incomplete, on account of the United States government and Seneca chiefs not having sanctioned my acts, they [Brooks and Clute] solicited me to renew the contract, and have the conveyance made to them in such a manner as that they should thereby be constituted sole proprietors of the soil.”

In the 1823 cession, the Senecas relinquished to Grieg and Gibson all but two square miles of the reservation, which would remain Seneca property “in as full and ample a manner, as if these presents had not been executed: together with all and singular the rights, privileges, hereditaments, and appurtenances, to the said hereby granted premises belonging or in anywise appertaining, and all the estate, right, title, and interest, whatsoever, of them the said parties of the first part, and of their nation, of, in, and to, the said tract of land above described.”

            In February of 1824, Secretary of War Calhoun wrote to Jasper Parrish and informed him that the Gardeau purchase did not require Senate ratification “because it was ‘considered in the nature of a private contract [that] does not require the special ratification of the Government as in treaties between the Indians and the United States.”  Calhoun believed that as a result, “there is nothing to prevent its execution by the parties concerned, as soon as they may think it proper.”  Three years later, the commissioner of Indian affairs wrote the secretary of war, indicating that the Gardeau deed did not need Senate approval because it was “esteemed to be a useless ceremony; the President approving it only.”

            All of this occurred before the 1826 treaty. In May of 1826, the House Committee on Indian Affairs published a report with the title, “To Hold a Treaty with the Seneca Indians.”  In it, the House committee members claimed that most Senecas wanted to sell their lands, that they wanted to become “civilized” on an American model, and that a federal commissioner should be appointed by the president to negotiate with them. Oliver Forward, a Buffalo politician, was appointed federal commissioner.

            The treaty council, which was held at Buffalo Creek, was something of a debacle.  The treaty was signed at the end of August in 1826.  In it the Senecas’ ceded all their lands along the Genesee to the Ogden Land Company. Furthermore, the size of the Buffalo Creek, Tonawanda, and Cattaraugus Reservations was reduced significantly as well. All told, the Seneca estate had been reduced by 86,887 acres, being, Forward said, “something more than one third of the lands they own in the western part of this state.”

            In exchange for this enormous cession, the Ogden Company agreed to deliver over a sum of $48,260, “lawful money of the United States.”  As with the Big Tree Treaty of 1797, most of these funds were invested, with the annual interest earned on the purchase price paid out to the Seneca.  This annual payment, calculated at an interest rate of 6% per year, came to be known as the Greig and Gibson annuity.  Although the treaty said nothing about it, the Ogden Company apparently agreed to pay as well certain life annuities to Seneca leaders who aided in the negotiation of the agreement.  Ten Seneca leaders received payments each year totaling $460.00.  Addressing concerns about these payments in a letter to Commissioner of Indian Affairs Thomas L. McKenney, Jasper Parrish said that the negotiations had “been conducted with perfect fairness, openness and propriety,” and that “no threats, or menaces, or bribes were made use of to my knowledge: but, as in every case of the kind, certain gratuities were made, after the conclusion of the treaty.”  Only $43,050 was ever invested, leaving close to $5000.00 from the purchase price missing. 

            Some Senecas and their supporters immediately challenged and contested the legality and the morality of the treaty. They complained, while others sent petitions and memorials to Washington supporting the treaty. To sort all this out took some time.  Those who signed the treaty, according to the author of the best account of the period, did so because they feared that if they did not sell, they would lose their lands outright to the squatters that nobody seemed able to control.  Some of the chiefs who signed the treaty, moreover, believed that by doing so they would satisfy the Ogden Company’s voracious appetite for Seneca lands.  They sold lands to avoid the prospect of removal to the west. They expected that after this cession, which they agreed to reluctantly, the Ogden Company would leave the Senecas in peace upon their remaining lands.  The United States Senate finally voted on the treaty in late February of 1828 but the vote was a 20-20 tie. John C. Calhoun, now vice-president, was not in attendance to break the tie.  The agreement thus did not receive the two-third vote required by the Constitution for ratification, but the Senators, apparently in an effort to clarify the reason for their vote,  passed an unprecedented resolution that read that “by the refusal of the Senate to ratify the treaty with the Seneca Indians, it is not intended to express any disapprobation of the terms of the contract entered into by individuals who are parties to the contract, but merely to disclaim the necessity of an interference by the Senate with the subject matter.” Viewed by more than twenty senators as a private agreement between the Ogden investors and the Senecas, they apparently believed that no reason existed for them to interfere. So why vote? Makes no sense.

            Protests from Red Jacket, from the Quakers, and from others continued, however, and they finally had an effect. President John Quincy Adams ordered his secretary of war to conduct an investigation. Richard Livingston undertook the task. He conducted his investigation, and found evidence of considerable corruption and fraud at the treaty council.  According to Seneca informants, the interpreters at the council threatened the gathered Indians with removal if they refused to sell.  Jasper Parrish, an employee of the United States in Indian affairs, reportedly offered bribes to certain Senecas in return for signatures. As a result, the flawed treaty was never resubmitted to the senate, and it never received proper ratification.  Still, the damage had been done, and by doing nothing, the United States government in effect acquiesced in a fraudulent, unethical and illegal treaty that carved a huge gash of territory out of the Seneca estate.

If the Ogdens achieved their goals in the Genesee valley, they struggled in their efforts to acquire the four largest Seneca reservations. In an 1819 memorial that Thomas L. Ogden sent to President James Monroe, he referred to himself as the “proprietor” of the lands presently “occupied by the Remains of the Seneca Nation of Indians.”  Ogden, four years before the Supreme Court’s decision in Johnson v. McIntosh, asserted that he was the titleholder to the remaining Seneca reservations in the state of New York, and the Indians mere occupants.

The Senecas did not share this view. Ogden wrote to Madison in the aftermath of Seneca refusals to sell their lands. Indeed the Senecas seemed uninterested in listening to the Ogden appeals to sell, and seem genuinely offended by the Ogden men.  In the Memorial, Ogden seemed surprised that the Senecas asserted “an unqualified title to the lands they occupy.” To prove their points, the Senecas produced their copy of the Treaty of Canandaigua, and cited it as evidence of their title to their lands. 

The Ogden Company’s position had supporters within the United States government. Shortly after Ogden’s memorial, Attorney General William Wirt wrote an opinion addressing the question of the Senecas’ land title.  He said that their right to the land, “however narrow,” was still “a title in fee simple” that the Senecas held as “a title of perpetual inheritance because it will be admitted on all hands that neither the present occupants nor their heirs so long as the nation subsists can be rightfully driven from their possessions.’ But that ‘fee simple’ title was qualified in some way, and Wirt saw it as “legal anomaly” because the Senecas, he believed, lacked the ‘right of alienation.” Wirt asserted that the Senecas had a right to lease as well as to sell their land, and he endorsed significant restrictions in the ways that Senecas might legally use their property.  He wrote, “They have no more right to sell the standing timber, the natural production of the soil as an article of traffic than they have to sell the soil itself.” Wirt believed that the Senecas might use their land for “the purpose of subsistence,” but not a type of property they might exploit, use or develop for their community’s good. Cutting and selling timber would “waste” or destroy the value of their reserves; therefore, not only was logging without the Senecas’ permission illegal—it was “a trespass against their right”—but even timber harvesting by the Senecas themselves or their lessees was prohibited because it violated the rights of preemption title holders.

However, Wirt’s view was not accepted by all inside the government.  Livingston, President John Quincy Adams’ appointee to investigate charges of bribery, corruption and coercion in the negotiation of the 1826 treaty, argued that “It cannot be that the Company can say to the Indians ‘when the right of preemption was granted[,] your Hunter condition was a Guarrantee to the purchasers that you should always remain wandering & never till the ground or cut the timber (which until recently was as valueless except to cover the game—as the game is now & could not have entered into the estimate at the time of the Purchase).’’ It is a fascinating statement.  Livingston recognized Seneca social and economic transformation, and the importance of land in that process.  The final article of the Canandaigua treaty provided an annuity to be paid in livestock, tools, and supplies to help the Indians make the transformation to an agrarian style of life similar to that of white American farmers.  Statements from Washington, Henry Knox, and many others echoed this desire.  Indians would stay on their lands, and in the eyes of the United States become “civilized.” 

Livingston believed that the Senecas were doing just that. “The Company seeks to restrict the Indians to their aboriginal use of their acknowledged right of occupancy. I assumed the liberty of telling the Indians that they had the right of occupancy in perpetuity unrestricted as to the mode of occupying and that as they had left the Hunter state & adopted the agricultural they had the right to fell their trees to make room for the plough—that it would be advancing their interests to do so—that the trees cut with such intentions would be theirs.”  Free use and enjoyment, right?  This is all spelled out in Livingston’s report on the 1826 treaty.

What, then, did the Senecas think that they were giving up in 1826? The Senecas understood that by relenting to the Ogden Company’s demands they would reduce the size of their reservations and allow additional white settlement in western New York. Again, think of your piece of paper. You have some circles remaining on that piece of paper, each representing one of the Seneca reservations, with much of the rest shaded gray.  I have tried to persuade you that in the Senecas’ view the reservations were for their exclusive use, lands that white people could not enter without their permission.  The rest, we have established, was land to which they granted white people access, but on which they retained the right to hunt and fish.   I have argued that this is something very close to ownership in the Senecas’ understanding of the land.  You have circles on that piece of paper and areas shaded gray. As a result of the 1826 treaty, you can erase all but four of those circles, increasing the gray area. Those represent the Genesee Valley reservations sold in the unratified 1826 treaty.  Of the four that remain, you can make each about a third smaller, reflecting the amount of land with which the Senecas ostensibly parted.  The four reservations remain land for their exclusive use.  The treaty said nothing about Seneca hunting and fishing rights, so they retained to the right to hunt and fish on the lands they supposedly had ceded.

Perhaps we are missing the larger point, the larger significance of what happened in 1826. The United States, after all, never ratified the treaty. There is no disputing this. The Secretary of War and the Commissioner of Indian Affairs both explained why they felt ratification was unnecessary, but their reasoning has frustrated historians ever since.  Even the Committee appointed in the 1880s to investigate “the Indian Problem” in New York State concluded that the 1826 treaty “was never ratified by the Senate of the United States, or proclaimed by the President, and the Indians have for a long time past claimed that the treaty was invalid for this reason.”

The Senecas who did sign the agreement made clear that they were either deceived or coerced into signing.  Those who agreed to the cession did so under duress. R. M. Livingston, who indicated that the combined population of Canawaugus, Squawky Hill, Big Tree and Gardeau was 448 in August 1826, collected depositions that make abundantly clear that the Senecas opposed sale of their lands until the company promised that it would ask them to sell no more of their lands if they assented to this sale.  An exception was apparently made, according to white people affiliated with the Ogdens, for the President, who could initiate discussions of a sale.  Jasper Parrish, in his deposition, stated that “among other things inducing them to sign the Treaty was an agreement by the Proprietors never to urge them to sell any more land.” 

In Livingston’s 1828 report, for instance, there are the following statements from Senecas:

*           William Jones, a “half blood (& interpreter to the missionary establishment), testified that “among other things inducing them to sign the Treaty was an agreement by the Proprietors never to urge them to sell any more land. Deponent thinks that the Donations aided in producing their assent to sell.” Jones was given $50 a year for life if he helped effect a sale. Jasper Parrish, who worked with the state, the federal government, and the Ogdens, said “that until the stipulation was signed by which the Indians believed themselves relieved from or secured against future importunities to sell, none of them signed the treaty.”

*           Captain Strong, a Cattaraugus chief, said “We understood that we were either to sell or remove.”

*           Chief Warrior, another Cattaraugus chief, said that Dr. Jimison “came and said he was sent up by Judge Forward, to inform the Chiefs that if they concluded not to sell, he would write on to the Sec’y of War, and there would be a road prepared for them to the Cherokee Nation. From that time they began to feel disposed to sell.”

*           Black Snake said the same thing in his deposition. “Forward told them that they had either to sell, or that a path would be opened for them to the Cherokee Country.  Greig told them that if they sold what was then wanted, the Company would never ask them to sell any more.” Black Snake assented to the sale “because they dreaded the thought of being removed.”

In the treaty itself, when it says that the Senecas retained the part of the reservations they did not cede “in as full or ample a manner as if these Presents had not been executed. Together with all and singular the rights, privileges, and appurtenances to the said, hereby granted premises, belonging or in any way appertaining and all the estate rights, title or interest, claim and demand whatever of them the said parties of the first part and of their Nation of in and to the said several tracts, pieces and parcels of land above describe except as above accepted.” The Senecas understood from the treaty that possession of their remaining lands would be undisturbed and unaffected by the sale. Livingston himself, in a letter to Secretary of War Peter Porter, indicated that the Senecas determination at the treaty not to sell their lands was viewed by the Ogden Company men as “an insuperable act of nonconformity to the will of government and the just claims of the Proprietors. The terrors of a removal enchained their minds in duress, and becoming petitioners in turn they submitted to the terms dictated—to sell a part to preserve the residue.”  The Senecas, Livingston continued, “esteemed” this guarantee to pressure them no more to sell lands as “a Guarantee for the quiet enjoyments of the residue of their lands.”

Let’s jump ahead. We will move more than a century forward. We will move past the State of New York’s concerted efforts to allot Seneca lands and dismantle Seneca families by placing their children in boarding schools, like the Thomas School, which remained open into the latter half of the 1950s. We will move past many of the state’s efforts to skim the cream from whatever fragile prosperity that came to Seneca lands. Frustrated by the determination of the Senecas and other Haudenosaunee peoples to hang on to their lands, their culture, and their systems of governance, the state’s leaders successfully lobbied Congress to enact legislation to limit the power of New York’s Indigenous nations. The resulting legislation, known as the “Spite Bills” of 1948 and 1950, extended state criminal and civil jurisdiction over Indigenous lands in New York State. This occurred at the beginning of a period in American Indian policy known as the Termination Era.  But even these laws, which did what Haudenosaunee people had feared for so long, recognized an important point: while extending its criminal jurisdiction over Indigenous nations, the law provided “that nothing contained in this Act shall be construed to deprive any Indian tribe, band, or community, or members thereof, hunting and fishing rights as guaranteed them by agreement, treaty or custom, nor require them to obtain state fish and game licenses for the exercise of such rights.”

            A final point. A couple of years ago, Justice Neil Gorsuch, President Trump’s first appointment to the United States Supreme Court, ruled in a case called McGirt v Oklahoma that treaty rights can never lapse, expire, or disappear because of the mere passage of time. Over many years, the Supreme Court held that Congress possessed plenary authority over Indian affairs.  Treaty rights exist, in other words, until Congress decides to exercise its plenary power to do something specific and unambiguous to make those treaty rights go away. I have in this essay tried to show you that these rights existed, that they extended beyond reservations, and that Congress has done nothing to abolish or repeal these rights. They still exist.

            New York became the Empire State through a systematic program of Indigenous dispossession. In places, this process violated federal law. Dispossession was not a product of conquest. It was not inevitable. Nor was it the American Nation’s “Manifest Destiny.” In places it was quite simply a crime against the laws of the United States. Even when the United States acquired lands in a manner that was “legal,” the practices deployed by the land companies and their allies will repel people of conscience. They used deceit and coercion.  Nobody who has looked at the historical record will deny this.  We who own land in this state, as a result, are the beneficiaries of an unjust process of dispossession. We have run up an enormous debt. The question, for me, really is not a matter of whether or not this debt exists, but what am I, and what are you, going to do about it.  You can pass laws proscribing the teaching of certain subjects. You can dismiss this as “woke” history, as some have done.  But that’s chicken shit.

It’s not an answer. It’s not an argument. It’s an abdication, and an admission, in my mind, of complicity in a crime that too many people are too unwilling to talk about.


 

Brett Kavanaugh’s Jacksonian Persuasion

            Justice Brett Kavanaugh wrote a destructive opinion in the case of Oklahoma v. Castro-Huerta that, simply put, threatens the entire field of American Indian law as it has developed and devolved in this country over the course of two hundred and forty-six years. The Supreme Court’s recent term has been nothing short of revolutionary, in all the worst ways. And it is going to get worse.

            “Indian country is part of the State, not separate from the State” Kavanaugh wrote, and “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” Keep these words in mind, for they have explosive implications. 

Kavanaugh’s words in the  Castro-Huerta case are nearly identical to the position Andrew Jackson took shortly after his inauguration in March of 1829.  The United States, his secretary of war John Eaton told the Cherokees, would never halt a state in the exercise of its powers over Native Americans residing within its borders because “that is not within the range of powers granted by the states to the general government.”  Indians must submit to the laws of the state they lived in or leave. Chief Justice John Marshall slapped that idea down three years later in his monumental opinion in Worcester v. Georgia, still the single most important decision in the field of American Indian law.

There is a concept with which all students of American Indian law are familiar: Congressional plenary power.  It is based on Article I, Section 8 of the United States Constitution, in which the American people gave to Congress the right to regulate “commerce with the Indian tribes.”  Basing his decision in Worcester on that constitutional clause, Marshall said that the Cherokee Nation is a “distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress.  The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.” The conduct of Indian affairs, then, belonged strictly to the United States, and sovereign Indigenous nations stood between the national and the state governments in the constitutional framework of the United States.  Native American sovereignty was real, it was constitutional, and it mattered.

            There were good reasons for this. During the Confederation era and thereafter, the individual states pushed the Indigenous nations that lived within their borders to the brink of wars the United States could hardly afford to fight.  The worst military defeat suffered by the United States at the hands of Native American opponents came not along the Little Bighorn in 1876 but along the Maumee, in 1791.  Powerful Indian nations posed an existential threat to the United States. George Washington and all his successors except for Andrew Jackson, looked for ways to rein in the states, which they believed posed the gravest threat to frontier order.

            If you jump forward a few years and read the Annual Reports of the Commissioners of Indian Affairs, you will see the same sentiments expressed.  Federal control over Indian affairs was necessary because locals consistently stirred up trouble with Indigenous peoples.  They stole lands and committed unspeakably cruel acts of violence.

Over the years, the idea that states can not intrude into Indian affairs has eroded considerably.  For instance, tribes have no right to prosecute non-Indians who commit crimes on their lands, the Court held in 1978. Only in certain specific circumstances do tribes possess regulatory authority over the activities of non-Indians who do business on their lands.  And we should be clear—federal plenary authority is hardly a good thing.  Sure, it restrains the states, which historically have always been worse, but plenty of evil has been done by the United States.

            American Indian law is not always a complicated subject.  There are a few simple principles that, once mastered, can help you make your way through the morass. For much of this nation’s history, Indian tribes could essentially exercise any power they wanted unless they were specifically prohibited from doing so by a treaty or an act of Congress.  That is Marshall’s logic in Worcester, and it held up for many years.  Some lawyers call this principle explicit divestiture.  In 1978 Justice William Rehnquist added the idea called implicit divestiture: Indian nations can exercise any power they want, unless explicitly prohibited from doing so by a treaty or act of Congress, or if the power in question is somehow inconsistent with their status as “domestic dependent nations.” A starkly drawn line between federal and state authority has been blurred.

            As Stephen Pevar put it in his useful ACLU Handbook The Rights of Indians and Tribes, there are five basic principles about criminal law in Native American territory:

  1.  Because of the plenary power doctrine, Congress can decide which governments exercise criminal jurisdiction in Indian Country, and Congress can increase or decrease the amount of power tribes, states, and federal governments might possess.
  2. Tribes have the inherent sovereign right to exercise criminal jurisdiction over its own members, with the exception of certain “major crimes” which Congress made federal crimes.
  3. Neither the state, according to Marshall’s Worcester decision, nor the federal government, according to the case of Ex Parte Crow Dog can exercise any criminal jurisdiction over tribal members for crimes committed in Indian Country unless Congress has explicitly given them that power.
  4. Indian tribes have no criminal jurisdiction over non-Indians unless Congress has specifically allowed for the exercise of that power, as it did in a limited manner in the Violence Against Women Act.
  5. Finally, owing to the 1881 McBratney decision, a state may exercise jurisdiction over crimes committed on reservations by non-Indians against non-Indian victims.

            Kavanaugh’s opinion would have made Andrew Jackson proud.  States are sovereign. They are free to conduct their elections in any manner they choose, to draw electoral districts however they like, to choose on their own whether or not to recognize the fundamental rights of women, and to conduct business with the Native American nations that live within their boundaries (and predate the existence of the state) however they choose. Victor Manuel Castro-Huerta, a non-Indian residing in Indian Country, is an awful person, an abuser of a Native American child and a man who injured his daughter in ways that are horrifying to read.  Because of last year’s McGirt decision, much of the eastern half of Oklahoma remained “Indian Country” because Congress had never disestablished the Creek Reservation.  The state wanted to prosecute Castro-Huerta, did so, and sentenced him to thirty years in prison.  When McGirt forced his conviction to be overturned, federal authorities tried him and sentenced him to seven years in prison.  The state appealed to the Supreme Court, and Kavanaugh said that states have concurrent jurisdiction with the United States over crimes committed by non-Indians in Indian territory. States had never relinquished that power, so with them it remained. That tribes predate the states did not matter one bit to the Court majority.  That tribes had their own governing institutions, their own legal systems, and their own very real need to maintain law and order on their lands did not matter at all.  That most tribes had never relinquished the right to prosecute outsiders who commit crimes on their land? Nope. Did not matter to Kavanaugh. No justification was needed to dismiss Indigenous nationhood. The Court’s Radical Right made might make right.

            Kavanaugh increased state authority on reservations over crimes committed by non-Indians with Indian victims, a field that previously could be prosecuted by the United States. It is important to realize this.  The Castro-Huerta decision is as much an assault on the plenary power doctrine as it is an assault on the rights of Native American nations.  And you should expect things to get considerably worse in the next year or two. 

            The Brackeen case, a legal battle in which the fate of the Indian Child Welfare Act of 1978 hangs in the balance, I fear is precisely the sort of Indian law case for which Justice Clarence Thomas has been waiting. Thomas is the most anti-Indian of the Court’s nine justices. The case that I worry about most is Brackeen v. Haaland. The Court will hear the Brackeen case in October.

            The Supreme Court’s conservative majority has done an immense amount of damage to its own legitimacy owing to its recent decisions. Brackeen focuses on an important 1978 statute known as the Indian Child Welfare act, or ICWA, for short. I worry that the Court will, with Brackeen, deliver a fatal blow not only to ICWA, but the entire foundations of American Indian Law. That will hurt the Court, but it will hurt Indigenous peoples even more.

              By nearly every objective measure, ICWA has been a great success.  Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption.  The problem was severe. 

Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to investigate, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families.  In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”  Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.      

Texas Attorney General Ken Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote in an editorial that appeared in the Washington Post early in 2019. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”

“Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.

Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.

You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.

Beginning in the second half of the twentieth century, the Court opened the door to increasing state power over native peoples and their lands. Conservatives on the Court have worked consistently to reduce the power of tribal governments. Justice Thomas, it seems to me, has led the way, making the case in a number of decisions over his long tenure on the Court that the plenary power doctrine is unconstitutional.

Why do I feel that way? First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine.

In the 2004 case of US v. Lara, for instance, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.” Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, while it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” The phrase– “commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, in another case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Thomas’s Bryant opinion is heavily cited in the Texas petition. Congress’s “purported plenary power over Indian tribes,” Thomas wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

So in his petition to the Supreme Court, the Texas Attorney General has built upon a foundation ready-made by Justice Thomas. “Relying on the Indian Commerce Clause,” the petition reads, “the Indian Child Welfare Act of 1978 creates a race-based federal child-custody system and requires the states to implement it for all Indian children who appear before their courts.” Relying on a district court ruling that found ICWA unconstitutional, Texas argued that “no provision of the Constitution gives Congress `plenary power’ over Indian affairs.”

Texas wants clarity, it says. It wants to do what’s best for the “most vulnerable among us—children residing in dangerous circumstances.” Rebecca Nagel in her excellent “This Land” podcast, argues that this case is about far more than children. It’s about an assault on the entire apparatus of federal control over Indian affairs. I think she is right.

Read colonial laws.  Read the writings of the royal commissioners who visited Virginia in the wake of Bacon’s race war against all Indians, or the writings of Henry Knox, or the annual reports of the commissioners of Indian Affairs during the second half of the nineteenth century.  In all you see an effort by authorities representing the state to control the activities of frontier residents, both Native and newcomer. They blamed frontier whites for frontier violence. The goal of imperial control and then federal control over the conduct of Indian policy always was contested by provincials, by the inhabitants of the territories, and the citizens of the sovereign states. If the Supreme Court chooses to hear the Brackeen case, it could strike down the important Indian Child Welfare Act. It also could, in the process, decide that the plenary power doctrine is unconstitutional.  In terms of Indian law, the consequences of this would be earth-shattering.

Think about it this way:  what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  According to constitutional scholar Gregory Ablavsky, the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation. Seriously. Read it. The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be made only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has asserted that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

These questions will not be addressed in the way I would like when the Court rules on the Brackeen’s appeal.  And we must keep in mind why Texas is devoting so much energy to combating ICWA.  What is in it for Texas? If the court hears the case, and Thomas persuades his colleagues on the Court to follow the logic of his rulings over the years, the Supreme Court  could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” and throw the regulation of Native nations over to the states.  Their lands, and the mineral wealth that lies beneath, would be subject to state legislatures who seek to skim the cream off of any prosperity that could conceivably come to Indian country.  These states could rush to place Native peoples on the same plane as the rest of their citizens, not as members of Indigenous Nations whose existence predates the establishment of the United States, but as individuals untethered and unprotected from tribal governments.  And that could be catastrophic for native nations. I hope I am wrong, but nothing in Kavanaugh’s most recent ruling makes me hopeful for the future.

The One Where I Worry About the Supreme Court and the McGirt case.

            The Supreme Court has set an April date for hearing arguments in the case of McGirt v. Oklahoma. The Court’s decision in this important case could significantly revise the entire field of American Indian law, and that should worry us all. 

            Jimcy McGirt committed a horrible crime.  His responsibility for the crime is not in doubt. A jury in Wagoner County, Oklahoma, found him guilty of one count of first degree rape by instrumentation, one count of lewd molestation, and one count of forcible sodomy, all committed on a four-year-old girl.  The judge sentenced him to life in prison without the possibility of parole. The Oklahoma Court of Criminal Appeals declined to review his conviction, so McGirt’s lawyers appealed to the Supreme Court. They argued that because McGirt was a member of the Muscogee (Creek) Nation, and because the crime took place in “Indian Country,” that Oklahoma courts lacked jurisdiction over this “Major Crime,” and that his conviction ought to be overturned.  In December of last year, the Supreme Court agreed to hear McGirt’s appeal.

            This is a big deal, for McGirt follows in the footsteps of last year’s Patrick Murphy case. Other than the specific crimes for which McGirt and Murphy were convicted, the two cases raise identical issues.  The Supreme Court heard arguments in the Murphy case but decided last summer not to issue a decision.  They knew that McGirt was coming. Patrick Murphy’s story is told in Rebecca Nagle’s This Land podcast.  If you are interested in Native Americans, sovereignty, and the law, you ought to give it a listen. An Oklahoma jury convicted Murphy of the murder of George Jacobs back in 1999 and sentenced him to death.

Both Murphy and his victim were members of the Muscogee Creek Nation. In a last ditch appeal designed to save his life, Murphy’s talented lawyer argued, among other things, that Congress had never explicitly disestablished the Muscogee Creek reservation and, as a result, that the murder took place in “Indian Country,” on Indian land. Because of the precise nature of this crime–one Native American taking the life of another Native American from the same community on that community’s land–and where it took place, the crime falls under the provisions of the federal Major Crimes Act. Oklahoma’s prosecution, conviction, and sentencing of Murphy was invalid because he can only be tried under law in a federal court.

This was the basis of Murphy’s final appeal, and the federal circuit court agreed. The Supreme Court issued a writ of certiorari and heard arguments in the case in November of 2019. Nagle listened to the arguments before the Court. Like many who watch and listen to the Supremes, Nagle attempted to discern from the justices’ questions how they might rule. Justice Neal Gorsuch recused himself: he had heard the case when he served on the federal circuit. Only four votes were needed to overturn Murphy’s conviction, and many speculated that the Court might decide the case a vote of four against four.

The McGirt case can be considered by the full court.  Gorsuch did not participate in any of the earlier proceedings.  Like Patrick Murphy, Jimcy McGirt committed a brutal crime. Nobody disputes that. If McGirt’s conviction is overturned, likely so will Murphy’s.  Still, the federal government surely will prosecute them both and surely both will spend the rest of their lives behind bars. But the case is far larger than Murphy or McGirt, because overturning these convictions will have enormous consequences for the state of Oklahoma and the Indian nations whose lands lie within its boundaries. If the Court agrees that Congress never explicitly disestablished the reservation, then nearly 40% of present-day Oklahoma remains Indian Country, with the state powerless to prosecute major crimes committed by one Indian on another. There is much at stake indeed.

In her discussion of the Murphy case, Nagle was most worried about Justice Ruth Bader Ginsburg. Nagle is absolutely correct to point out that Ginsburg, despite her celebrity and her liberal bona fides on a host of issues, is no friend to native peoples. It is a point I made on this blog some time ago in response to all the lionizing of the “Notorious RBG.” Nagle mentions Ginsburg’s devastating ruling in the Sherrill decision.

Nagle said nothing about Justice Clarence Thomas, who rarely speaks from the bench. But the McGirt case seems like the sort of case Thomas has been waiting for, and that worries me greatly. Thomas could produce an opinion that lays waste to the entire foundation of American Indian law.

First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine. That doctrine, which emerged in a series of cases over the course of the nineteenth century, holds that Congress derives from the “Indian Commerce Clause” (Article 1, Section 8) the power to act unilaterally in all areas of American Indian policy and diplomacy. Congress can basically do what it wants.

Thomas was uncomfortable with this. In the 2004 case of US v. Lara, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause . . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes. The phrase–“commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

“the Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.”

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in a 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty.

Thomas, in a manner entirely consistent with his earlier rulings, could rule against McGirt. He could argue that the Major Crimes Act is unconstitutional, because there is no justification for this extension of federal control over native nations in the sparse language of the Constitution. There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher, who Nagle interviews at length in This Land, and Gregory Ablavsky, have both written about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit? Thomas could spell out his beliefs fully in the McGirt case. It will provide him a perfect opportunity to do so.

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes. I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

We won’t get that far in McGirt. But what I do fear is that Thomas could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And that could be catastrophic for native nations.

Why I’m Worried About What Clarence Thomas Might Be Doing Right Now in Carpenter v. Murphy.

I have listened to the first two episodes of Rebecca Nagle‘s This Land podcast. If you are interested in Native American history, you should too. Nagle tells the story of Patrick Murphy, convicted by the State of Oklahoma for the gruesome murder of George Jacobs back in August of 1999. An Oklahoma court sentenced Murphy to death.

Both the murderer and his victim were members of the Muscogee Creek Nation. In a last ditch appeal designed to save his life, Murphy’s talented lawyer argued, among other things, that Congress had never explicitly disestablished the Muscogee Creek reservation and, as a result, that the murder took place in “Indian Country,” on Indian land. Because of the precise nature of this crime–one Native American taking the life of another Native American from the same community on that community’s land–and where it took place, the crime falls under the provisions of the federal Major Crimes Act. Oklahoma’s prosecution, conviction, and sentencing of Murphy was invalid because he can only be tried under law in a federal court.

This was the basis of Murphy’s final appeal, and the federal circuit court agreed. The Supreme Court issued a writ of certiorari and heard arguments in the case late last November. Nagle listened to the arguments before the Court. Like many who watch and listen to the Supremes, Nagle attempted to discern from the justices’ questions how they might rule. Justice Gorsuch recused himself: he had heard the case when he served on the federal circuit. Only four votes are needed to overturn Murphy’s conviction.

Patrick Murphy committed a brutal murder. Nobody disputes that. If his conviction is overturned, surely the federal government will prosecute him and surely he will spend the rest of his life behind bars. But the case is far larger than Murphy, and overturning his conviction will have enormous consequences for the state of Oklahoma and the Indian nations whose lands lie within its boundaries. If the Court agrees that Congress never explicitly disestablished the reservation, then nearly 40% of present-day Oklahoma remains Indian Country, with the state powerless to prosecute major crimes committed by one Indian on another. There is much at stake.

Nagle is most worried about Justice Ruth Bader Ginsburg. Nagle is absolutely correct to point out that Ginsburg, despite her celebrity and her liberal bona fides on a host of issues, is no friend to native peoples. It is a point I made on this blog some time ago in response to all the lionizing of the “Notorious RBG.” Nagle mentions Ginsburg’s devastating ruling in the Sherrill decision.

Nagle said nothing about Justice Clarence Thomas, who rarely speaks from the bench. But the Murphy case seems like the sort of case Thomas has been waiting for, and that worries me greatly. Thomas could produce an opinion that lays waste to the entire foundation of American Indian law. Here is what I think might happen:

First, Thomas believes that much of the Court’s jurisprudence on Native American question lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine. That doctrine, which emerged in a series of cases over the course of the nineteenth century, holds that Congress derives from the “Indian Commerce Clause” (Article 1, Section 8) the power to act unilaterally in all areas of American Indian policy and diplomacy. Congress can basically do what it wants.

Thomas was uncomfortable with this. In the 2004 case of US v. Lara, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes. The phrase–“commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty.

Thomas, in a manner entirely consistent with his earlier rulings, could rule against Murphy. He could argue that the Major Crimes Act is unconstitutional, because there is no justification for this extension of federal control over native nations in the sparse language of the Constitution. There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher, who Nagle interviews at length in This Land, and Gregory Ablavsky, have both written about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit? Thomas could spell out his beliefs fully in the Murphy case.

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

We won’t get that far in Murphy. But what I do fear is that Thomas could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And that could be catastrophic for native nations.

How Does a Story End?

Driving from Rochester to Washington a couple of weeks ago, I saw this historical marker on Route 15, just north of the Pennsylvania state line. It commemorated the “final episode” of the Sullivan-Clinton campaign in 1779. American forces invaded the western Iroquois homelands and burned towns throughout the “Finger Lakes” region of western New York. I tell the story of the Sullivan-Clinton campaign in Native America. I have also written about it on this blog here and here. Because I cross the paths Sullivan’s army traveled frequently, I am familiar with many of the historical markers identifying key sites in the campaign.

But his one was new to me. The people who wrote it believed that the Sullivan-Clinton campaign ended near this spot. The soldiers completed their mission. The story began, and it ended.

I find myself these days spending a lot of time talking history with what some might call “amateurs”–people who are interested in the past, who enjoy reading history, even if they do not study it systematically. One of the things that strikes me about these conversations is that we have not been as effective as we might have been in describing what it is that we do, and why we do it. We have not, among other things, explained how much choice is involved in the historical enterprise. We choose the stories that we want to tell. We determine what questions we want to answer, how we can best answer them, and how best to present the results of our research. We determine the scope of our work geographically–how much space we are going to cover, and chronologically. He have to decide where in time our stories begin and end.

According to this marker, the story of the Sullivan Campaign, ended “with the advance of Col. Van Cortland’s brigade up the Canisteo River to this area two miles beyond the Tory-Indian town of Painted Post burned by Capt. Simon Spaulding’s riflemen, September 28, 1779.” Joseph Fischer, in the most thoroughly-researched military history of the invasion, says it began in July and ended in September.

But did it?

The soldiers went home. Or they went to fight elsewhere. Some of them later returned to New York, settling on lands seized from the Iroquois. But the expedition was, as Fischer calls it, a “well-executed failure.” That apt title implies that despite the invasion, the Indians remained. They resisted. Their towns burned, the fields destroyed, the orchards cut down, they settled at the refugee haven around British-controlled Fort Niagara, or along Buffalo Creek. They suffered through a brutal winter. They fought on. And when the British abandoned them, they faced the onslaught of settlement encouraged by private land companies, the state, and the United States. They signed treaties and formal deeds of cession. New York’s rise as the “Empire State” could not have occurred without Iroquois dispossession.

But after the campaign the Senecas remained in New York. That much is obvious. They resisted their complete dispossession. They obtained security for some of their lands at Canandaigua in 1794, sold much of their homeland in 1797, and in 1802, 1815, 1826 and 1838 as well. But they are force still in western New York. Their gaming enterprises in Niagara Falls, Salamanca, and Buffalo are significant. They have survived, even though they continue to contend with the obtrusive power of the state. Perhaps the story of the Sullivan-Clinton campaign, which its planners hoped would lead to “civilization or death” to the American “savages,” has yet to end.

The Treaty of Big Tree–Let’s Follow the Money

The anniversary of the “Treaty of Big Tree,” signed on the 15th of September in 1797, is approaching. According to a New York State historical marker, the agreement was negotiated on land that now provides parking for students who attend the college where I teach.  It is a big deal in Geneseo. It is the one, big, historical event that occurred within the town’s bounds.

One thing that I think a lot of non-historians do not realize is the amount of research we do that never sees the light of day. Although we require our students quite often to come up with some meaningful sort of research project during the short fifteen weeks of a semester, we spend plenty of time following interesting questions that lead to dead ends.  It happens all the time. We are curious. We ask questions and, sometimes, despite our best efforts, we cannot find an answer.

A couple of years back I was asked to do some research for the Seneca Nation of Indians about the history of the annuities that often were attached to the agreements they entered into with New York State and the United States.  In exchange for their lands, Senecas would receive an annual payment.

I often see this bumper sticker in and around Indian Country.  The Indian Country Today Media Network, now apparently on hiatus, spoke frequently of broken treaties.  But some treaties, it must be remembered, were little more than real estate transactions in which white people obtained a title to Indian lands in return for very little at all.

I have always done research on Big Tree, but I had never bothered to look at whether the United States had fulfilled its part of the bargain. Certainly it acquired a lot of land. But did it pay to the Senecas what they were owed?  I travel with footnotes.

I tell the story of the treaty at Big Tree in Native America.  It is an important moment in the history of the Senecas.  Robert Morris had acquired from earlier land speculators a right of preemption, or first purchase, to all the Seneca lands in New York state. He sold this right to the Holland Land Company in December of 1792.[1]  A well-financed syndicate of Dutch merchants and bankers, the Holland Land Company was much better equipped than Morris to oversee the actual opening up of the Seneca homeland to white invasion and settlement—a massive undertaking that involved administering an enormous territory, and absorbing the costs associated with surveying, building roads, and laying out towns.[2]  Before they would pay, however, the Holland investors insisted that Morris extinguish the Senecas’ title to the lands in question.

What did that mean? It meant holding a treaty, and negotiating with the Senecas.  In 1797 Morris began laying plans for a council.  Because Morris was ill and because he feared prosecution for debt should he leave his home in Philadelphia, his son Thomas traveled to Big Tree on the Genesee River to conduct the treaty. (The treaty was held, according to a New York State historical marker, near one of the parking lots on my campus).  The story of this sordid council, involving the use of alcohol at the treaty ground and the bribing of important Seneca leaders, has been told many times before. My treatment in Native America is inspired by the great books written by Anthony F. C. Wallace and Laurence Hauptman, which are required reading for those who wish to understand the Iroquois.[3]

Morris obeyed the letter, if not the spirit, of the federal Indian Trade and Intercourse Law, the statute which governed relations between natives and non-natives.  The law required that for a purchase of Indian lands to be legally valid, the purchase must be overseen by the United States, and the resulting agreement must be approved by the United States Senate.  Morris requested and obtained the appointment of a federal agent, and the Senate did ratify the agreement. And at Big Tree, on the campus where I offer my courses in Iroquois history, the Senecas parted with all of their land, that huge region from the Genesee River westward to the Great Lakes and the Niagara River, save for 200,000 acres distributed across eleven reservations.  In exchange for this massive cession, Morris agreed to pay “the sum of one hundred thousand dollars, to be by the said Robert Morris vested in the stock of the bank of the United States, and held in the name of the President of the United States, for the use and behoof of the said nation of Indians.”  The Senecas would receive as a payment, each year, the interest earned on this investment.[4] 

So let’s follow that money, as far as the sources allow.  That was easier said than done.  I am no accountant.

In March of 1798 the United States used the $100,000 it had received from Robert Morris to purchase 205 shares in stock of the Bank of the United States “to be held in trust” for the Senecas “by the President of the United States.”  The dividends on this investment averaged slightly more than seven thousand dollars a year, though some of the revenues that would otherwise have been delivered to the Senecas were withheld to purchase additional stock: 9 shares in 1804 at a cost of $5328.00, an additional share in 1806 for $522.00, and five more shares in 1807 for a sum of $2580.00.  With the exception of this combined amount of 8430 dollars, the increase produced by the Big Tree investment was delivered to the Senecas by federal agents.  The dividend, paid twice a year, amounted to a minimum of sixteen dollars per share between 1798 and 1802, or $3280 every six months.[5]

The Bank of the United States, part of Alexander Hamilton’s (Stop singing, please) ambitious but controversial program for developing the new nation’s economy, had received a twenty-year charter from Congress in 1791.  When the Bank ceased its operations in 1811, the stock was liquidated, producing a sum of $95,040. (This sum was less than the $100,000 initially invested owing to shifts in the value of the stock).  The War Department credited $1980.00 of this sum to fund its Indian appropriations account, while investing the remaining $93,060.00 in 6% stocks in the name of the President of the United States, to be held in trust for the Seneca Indians.

The Senecas watched closely these funds, and saw the annual dividend as essential to their survival.  They said this, in writing, time and again.  A large group of “Seneca chiefs” told Secretary of War William Eustis in 1811, after the expiration of the Bank’s charter, that “we are told the field where our Money was planted is become barren.”  What they hell, they seemed to be saying. This concerned the Senecas, the chiefs said, because “our money has heretofore been of great service to us.  It has helpt us to support our old People, and our Women and Children.”  The Senecas sought assurance that the Big Tree fund—the result of their leaders’ difficult decision to transform their lands in western New York into an annual payment—would continue to be paid.  “Brother,” the chiefs wrote to Eustis, “we do not understand your ways of doing business,” and “this think is heavy on our minds.”  The Senecas wanted to continue “to hold our White Brethren of the United States by the hand, but this weight is heavy. We hope,” they concluded, that “you will remove it.”[6]

I am fairly certain that these Seneca chiefs understood more than they let on.  Signed by a large number of prominent Seneca leaders, the “Talk of the Seneca Chiefs” must have occasioned some alarm in the War Department.  With war with Great Britain looming, the chiefs suggested that if the United States did not uphold its part of the bargain and see to the continued payment of the dividends, they might then cease “to hold our White Brethren of the United States by the hand,” and instead embrace those other white brethren, who stood poised on the opposite side of the Niagara River and Lake Ontario, with whom they had aligned during American Revolution. Don’t mess with us. You need us to help secure the Niagara frontier.

The interest earned on the investment after 1811 produced only $5618 per year, but owing to the importance of the Senecas as allies while the United States muddled through its conflict with England, the sum of $6000 was paid to them from the general funds of the Indian department.  This fund, in turn, was credited with the dividend produced by the stock.  This arrangement continued until 1826 when the 6% stock was liquidated, producing $93,602.67, which the War Department invested in 3% stock.  The dividends, falling well short of the $6000 to which the Senecas had grown accustomed, posed a problem for the administration of John Quincy Adams.  To pay the usual $6000 would draw down the fund and perhaps force the sale of the stock from which the dividends derived.  In any case, the government would be expending more than the interest on the investment.  President Adams determined nonetheless “that the government would continue to pay” the Senecas six thousand dollars annually, “taking upon itself the protection of the fund.”  The United States, Adams believed, “was bound in good faith to do so.”[7]

Adams was willing to spend federal funds to uphold the honor of the United States.  His successor, Andrew Jackson, clearly did not share this view.  Commissioner of Indian Affairs Thomas McKenney disliked the idea of paying the $6000.00 when “the sum remitted” was “greater than the interest received on the Stock.”  Anticipating the new president’s views, McKenney decided to offer to the Senecas in 1829 nothing more than the divided, a sum of less than three thousand dollars by 1829.[8]

This unilateral decision angered the Senecas.  An elderly Cornplanter, writing from Kinzua, appealed to President Jackson.  The Senecas, Cornplanter wrote, had been well satisfied with the annual dividend of $6000, but now the news from Washington “fills our minds with concern that we cannot get our Money nor be informed why we should not receive [it] as in former years.”[9]  Writing less than three weeks after Congress enacted the Indian Removal Bill, surely Cornplanter recognized that he had directed his appeal to an ardent expansionist who coveted Indian land and wanted all eastern Indians relocated to new lands in the west. The Big Tree payment, Cornplanter continued, “was but a little but it enabled us to purchase Salt & some Blanketts and that would be a great help to those who are active & till their land.”  The Senecas could not accept anything less than the 6% to which they were accustomed.[10]

The President did not believe that any law existed which authorized him to pay to the Senecas a sum greater than the value produced by the stock.  Sticking to his rigid and self-serving code of constitutional interpretation, Jackson punted the question to Congress, which in the 1830s did things.  The resulting bill, introduced in the House of Representatives, would provide the Senecas with a permanent annuity of $6000, while whatever proceeds emerged from the stock would be credited to the United States.

Senator John Forsyth of Georgia, a determined advocate of the ethnic cleansing his state carried out against the Cherokees and the Creeks, opposed any measure that went beyond the strict language of the Big Tree treaty.  Nothing in that agreement, he believed, obligated the United States to pay to the Senecas 6% forever.  Paying the $6000 he said,

 

had already cost the Government a very considerable amount  over and above the product of the stock, and now the question arises, are we bound to do more, after doing all we have already gratuitously performed?  But it is said the Indians have been given to understand that the full amount of six thousand dollars should be paid to them. Who gave them to understand this? Who had a right to do so? And yet it was on such loose declarations that the whole merits of this claim seemed to rest.  It is contended that the Government is bound to realize to these Indians any expectations they may have been induced to entertain.  It is true, it is said that the late President of the United States [Adams], when the subject was before him, had given them these assurances. This, however, did not establish the justice of the demand.  He could see no sort of obligation on the part of the Government to pay them more than the amount produced by their stock.[11]

Forsyth’s argument failed to persuade a critical number of his colleagues, which is surprising given how they felt about Indians, and the bill became law in February of 1831.  Thereafter, the law read,

the proceeds of the sum of one hundred thousand dollars, being the amount placed in the hands of the President of the United States, in trust, for the Seneca tribe of Indians, situated in the State of New York, be hereafter passed to the credit of the Indian appropriation fund; and that the Secretary of War be authorized to receive, and pay over to the Seneca tribe of Indians, the sum of six thousand dollars annually, in the way and manner as heretofore practiced.

A subsequent act, signed into law in December of 1831, paid to the Senecas $2914.40, “that being the balance due on the annuity payable to said Indians for the year one thousand eight hundred and twenty-nine.”[12]

Congress did on a number of subsequent occasions revisit the Big Tree annuity.  An act passed in June of 1846 provided that “certain stocks, etc. held in trust for the Senecas should be cancelled and the funds deposited in the Treasury at 5 percent interest and the interest paid to the Senecas annually.”[13]  Fifty-three years later, in March of 1909, Congress directed the Secretary of the Treasury to place on the books of the Treasury Department “to the credit of the Seneca Indians of New York, the sum of $118,050, such sum to bear interest at 5 percent until withdrawn for the Indians, being the value of stocks held in trust for the Indians and taken by the United States and cancelled under the authority of the act of June 27, 1846.”  Congress authorized the Treasury Secretary in 1909 to place on the books of the treasury department $118,050, “such sum to bear interest at 5 percent until withdrawn for the Indians, being the value of stocks held in trust for the Indians and taken by the United States and cancelled under the authority” of the 1846 act.  This sum, Congress decided, the Treasury secretary would pay  “per capita to the members of the tribe entitled thereto.”[14]

I am not sure what happened as we carry the story through the rest of the nineteenth century and into and through the twentieth. The records of congressional appropriations show that the Congress continued to appropriate the $6000 dollars each year to pay its obligations under the Big Tree treaty.  Seneca Nation records, however, suggest that these payments were not received until relatively recently. I still have work to do to be able to sort this out.

But here is the thing. Honor Indian Treaties.  But a lot of them were not honorable at all, and the terms of many of them were never written with Indians’ interests in mind. Students in my Native American Survey course has just finished reading Thomas King’s The Inconvenient Indian, which says so much in such a breezy manner.  “Treaties,” King wrote, “were not vehicles for protecting land or even sharing land.” Rather, “they were vehicles for acquiring land.  Almost without fail, throughout the history of North America, every time Indians signed at reaty with Whites, Indians lost land.”

So let’s think about what we mean when we call upon the United States to honor its treaties. Certainly the government should keep its word. Certainly in the realm of Indian affairs it has behaved despicably and irresponsibly. Certainly treaties have been broken many times, with often devastating consequences. But, in many instances, native communities would have been better off if these treaties had never been negotiated, never signed, never ratified, and never proclaimed by the president.  So many of them were coerced, or fraudulent, or exploitative.  The colonization of this continent, and the dispossession of native peoples, to a great extent was achieved through the instrument of treaties.

 

[1] Charles E. Brooks, Frontier Settlement and the Market Revolution: The Holland Land Purchase, (Ithaca: Cornell University Press, 1996), 13-14.

[2] Wallace, Death and Rebirth of the Seneca, 179-180.  The Holland Land Company Papers are located at the State University of New York, College at Fredonia.

[3] Wallace, Death and Rebirth of the Seneca, 179-183; Taylor, Divided Ground, 313-316; Laurence M. Hauptman, Conspiracy of Interests: Iroquois Dispossession and the Rise of New York State, (Syracuse: Syracuse University Press, 1997), 91-92; Norman B. Wilkinson, “Robert Morris and the Treaty of Big Tree,” Mississippi Valley Historical Review, 40 (September 1953), 257-278.

[4] Kappler, comp., Treaties, 1028.

[5] LR OSW IA, 1: 0188.

[6] Talk of the Seneca Chiefs, 9 October 1811, LR OSW IA, 1: 714.

[7] Nourse Report, 18 March 1829, LR OIA-Seneca, Roll 808.

[8] McKenney to Secretary of War John H. Eaton, 17 March 1829, Ibid.

[9] John O’Bail (Cornplanter) to Andrew Jackson, 2 August 1830, Ibid.

[10] Ibid.

[11] Gales and Seaton’s Register of Debates in Congress, 3 February 1831, p. 79.

[12] Available at the Library of Congress “Century of Lawmaking” website.

[13] “Compilation of Material Relating to the Indians of the United States, etc., by Subcommittee on Indian Affairs of the Committee of Public Lands, House of Representatives, Pursuant to H. Res. 66, 81st Congress, 2d. Sess., 13 June 1950, Serial No. 30,” in Paul G. Reilly Collection, Buffalo State College, Box 37, p. 12.

[14] Ibid., 13.