Shifting American Indian Policy during the Articles of Confederation Era

While the Articles of Confederation are often viewed as a failed attempt at governing the newly independent United States, this period did provide for growth and development in the realm of how to properly interact with Indigenous American tribes on the lands east of the Mississippi River ceded by Great Britain. The interactions of the United States with Indian Nations, especially regarding American land claims, shifted from Arthur Lee’s belief in the “right of conquest” to Henry Knox’s policy based upon “justice and public faith” towards the Indian Tribes.

Arthur Lee and the Spoils of War

Arthur Lee during the War for Independence served as a diplomat for the United States and was elected as a Virginian delegate to the Continental Congress where he served on the committee for Indian Affairs and as one of the five commissioners to treaty with Indigenous Americans at Fort Stanwix and Fort McIntosh.^[1]

The Committee of Indian Affairs, of which Arthur Lee was a member, sent a report to the Continental Congress on October 15, 1783 noting that the Indians who allied with the British during the war were under obligation “to make atonement for the enormities which they have perpetrated, and a reasonable compensation for the expense which the United States have incurred by their wanton barbarity; and they possess no other means to do this act of justice than by compliance with the proposed boundaries.”^[2] While this report focused on the tribes in the Ohio valley and western New York frontier, similar sentiments were expressed in regards to the tribes all along the frontier of the new nation.^[3] This view, that the United States now owned the land after the 1783 Treaty of Paris and the Indian tribes were merely tenets upon American soil, drove many Congressional delegates to insist that “the Savages should without Compensation abandon Part of their Country to the United States who claim it by Conquest & as a Retribution” for Indian violence during the war.^[4]

In March 1784, after serving on the Committee for Indian Affairs for one year, Arthur Lee was appointed to serve as a commissioner for the treaties with the tribes of the Six Nations on the frontier of New York, which resulted in the Treaties of Fort Stanwix (1784) and Ft. McIntosh (1785). Lee and the four other commissioners were directed to treat with the tribes to establish boundaries and limit interactions between settlers and Indian tribes.^[5] Lee’s service on the committee that created the initial report outlining America’s claims to Indian lands under the “right of conquest” ensured those ideas and beliefs transferred into his diplomatic dealings with the Six Nations during the negotiations.

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Although Arthur Lee and his fellow commissioners may have strongly believed in America’s “right of conquest” claims, they were capable diplomats who understood they could not simply demand the tribes surrender lands without a degree of compensation to help make the negotiations less contentious. The commissioners requested $60,000 to cover the cost of gifts for the treaty negotiations.^[6] This perception is borne out in Article 4 of the Treaty of Fort Stanwix, and Article 10 of the Treaty at Fort McIntosh, where the United States agreed to “provide goods to be delivered . . . for their use and comfort.”^[7] While this may appear to be a shift away from war reparations to be paid for with Indian lands, it is more likely an effective application of diplomatic tools to strongly encourage the tribes to cede the lands peacefully.^[8]

The best method to truly understand how the United States government and Arthur Lee understood America’s “right of conquest” to Indian lands is to view the Continental Congress’s interactions with tribes that allied with the new nation during the War for Independence. Due to “their fidelity and attachment to the United States, through all the vicissitudes of the late war,” the Continental Congress directed that Indian officers who fought for the Continentals be paid “in like manner as other officers,” and the Oneida and Tuscarora lands were specified and purposefully not divided as part of the Treaty of Ft. Stanwix.^[9] This difference highlights how Arthur Lee based his Indian policy upon which side a tribe allied with during the War of Independence and sought retribution from those tribes that had aligned themselves with the British forces.

Henry Knox and the Policy Shift

After Benjamin Lincoln departed as Secretary at War in 1783, the War Department was staffed by two clerks until January 1785, when the Continental Congress began looking for someone to head the department.^[10] The roles of the Secretary at War were to oversee and maintain stores and supplies for the military, raise and train an Army whenever Congress deemed an increase in military size appropriate, and direct the mission of the military as a senior leader within the military chain of command. By the middle of 1786, Congress began to fully recognize the potential advantages of having an organized Indian Department under the Secretary of War, and with the “Ordinance for regulating the Indian Department” three geographic regions were created, each possessing their own superintendents who would live on the frontier to discourage “annoyance of the inhabitants of the frontiers.”^[11] This merger of military command and Indian policy did not exist during the Arthur Lee period, but with the merger of the War Department and the newly created Indian Department, the military’s role to create and maintain rigid borders and peaceful interactions between Indian tribes and frontier settlers grew and remained a critical part of that relationship well into the nation’s future.

By 1787, Secretary Knox and other national level leaders began to see illegal settlement on Indian lands as a key cause of violence between frontier Americans and Indian tribes.^[12] Treaty stipulations and directions issued by Congress to the newly appointed Indian Superintendents “prohibit the settlement of all persons, not properly authorised for that purpose, upon unappropriated lands of the United States, under the penalty of their displeasure,” and allowed for the forceful removal of squatters from Indian lands.^[13] While the Army attempted to ensure peace along the frontier, it often removed white squatters from Indian lands due to the individual states’ lack of concern respecting the treaties signed by agents of the United States government.

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The Articles of Confederation stated that Congress possessed the right for “regulating the trade and managing all affairs with the Indians, not members of any of the states,” and this stipulation caused many states to be unwilling to adhere to the treaties between the Indian Nations and the United States.^[14] In September 1786, then-Congressman Arthur St. Clair introduced a motion to prevent Virginia from sending state militia into territory west of the Appalachian Mountains into lands that Virginia had not yet ceded to the United States, because he was afraid of the militia starting an Indian war.^[15] Georgia and North Carolina both maintained grievances relating to the borders defined in the 1785 Treaty of Hopewell between the United States and Cherokee Indians.^[16] Recommendations for solving these jurisdictional disputes ranged from the states ceding their lands claims, allowing the United States government to serve as the judge or mediator, or allowing open warfare to arise.^[17] While the Congressional committee formed to handle this jurisdictional issue agreed that the states were failing in their responsibility to prevent settlement on Indian lands, they ultimately recommended (as that was the limit of Congress’s power) that the states cede the disputed claims to the United States so that the federal government could deal with the Indians unilaterally.^[18]

With the states pushing for the National Army along the frontier to protect them against Indians, Secretary Henry Knox saw the role of the army on the frontier as one that “must keep both sides in awe by a strong hand, and compel them to be moderate and just.”^[19] By the middle of 1787, Congressional committees that dealt with the Virginia militia’s unauthorized actions along the frontier noted that Congress had a “duty to preserve peace with Indian nations and to permit no settlements on their lands or Intrusions on lands of the United States in that part of the Country.”^[20] Illegal settling on Indian lands threatened to erupt into warfare along the frontier, and Congressional committees noted that war “cannot be consistent with the Interest and policy of the Union,” especially due to the poor state of finances of the country under the Articles of Confederation.^[21] Knox, as well as other delegates to Congress, had noted that it was cheaper to maintain peace through treaties than it was to go to war against the Indians.^[22]

The Growth of a Coherent Policy

By 1787, Congress published instructions for the Indian superintendents which dictated, “Justice forbids the United States from being guilty of oppression; but at the same time it dictates that their peaceable citizens shall be protected in their lawful pursuits.”^[23] This shift away from demanding that “the Savages should without Compensation abandon Part of their Country to the United States who claim it by Conquest and as a Retribution” brings to full light the movement away from a belief in the “right of conquest” to a policy more based upon “justice and public faith.”^[24] In an attempt to engage fairly with Indigenous Americans, Congress appointed commissioners to meet with Indian tribes to renegotiate previous treaties, not to demand additional land concessions but to “remove all causes of controversy, so that peace and harmony may continue between the United States and the Indian Tribes, the regulating trade and settling boundaries.”^[25] This shift in mentality occurred throughout the development of the Indian Department under Secretary Knox, but was codified by late 1787.

In 1787, Knox recommended to Congress that to keep peace along the frontier and to prevent excursions by each side, a military force of 1,500 was needed to maintain order and “by force expel them (those settled in a territory illegally) from their towns or extricate them.”^[26] While he acknowledged the financial impossibility of raising and supporting such a force, he provided a glimpse into the ideal policy that he would implement, which was not based upon seizing of lands through “right of conquest,” but was instead based upon an attempt at peaceful coexistence along a defined border. Congress ultimately agreed to most of the proposed policy to “afford the most effectual protection to the frontier . . . from incursions and depredations of the Indians, for preventing intrusions on the federal lands [by illegal settlers] . . . prevent wanton Attacks upon the Indians by lawless men which so essentially tend to destroy all peace and friendship with the Indian Nations.”^[27]

Knox’s rebuttal of Arthur Lee’s “rights of conquest,” his use of the Army on the frontier, and his view of a proper policy were displayed in his report to Congress about a request from Colonel Martin of the North Carolina militia requesting troops to help maintain peace on that state’s frontier. Knox claimed, “By an upright and honorable construction of the treaty of Hopewell the United States have pledged themselves for the protection of the said Indians within the boundaries described by the said treaty and that the principles of good Faith sound policy and every respect which a nation, owes it own reputation and dignity require of the union possess sufficient power that it be exerted to enforce a due observation of the said treaty.”^[28] Knox’s insistence that the United States consider agreements and treaties made with Indian tribes as valid and legally binding for the new nation enabled him to convince the Continental Congress to approve a measure to send US troops to North Carolina to remove illegal settlers who were residing on Indian lands.^[29]

Toward the end of the life of the Articles of Confederation, a clear Indian policy emerged. Providing continuity of leadership in these matters through four iterations of congressional delegates and committee members, Secretary Knox devised a framework for interacting with Indigenous American tribes. Tribes, and their land claims, were to be treated in the same fashion as independent nations with defined borders that were established through treaties and protected by a military force that prevented unauthorized travel and commerce. The United States had moved away from insistence of Indian lands based upon “right of conquest” and war reparations, and instead shifted to a policy which utilized the United States Army and a newly developed Indian Department to maintain a peaceful separation between Indian tribes and white settlers.

^[1]Biographical Directory of the United States Congress. bioguide.congress.gov/search/bio/L000188.

^[2]Journals of the Continental Congress, 1774-1789, ed. Worthington C. Ford et al. (Washington, D.C., 1904-37), 25: 683.

^[3]Journals of the Continental Congress, 27: 454-6.

^[4]Journals of the Continental Congress, 25: 684-5; Pennsylvania Delegates to the Pennsylvania Assembly, September 25, 1783, in Letters of Delegates to Congress, 1774-1789, ed. Paul H. Smith, et al. (Washington, D.C.: Library of Congress, 1976-2000), 20: 710-11.

^[5]Journals of the Continental Congress, 28: 134.

^[6]Journals of the Continental Congress, 26: 297.

^[7]Journals of the Continental Congress, 28:424, 426.

^[8]This assumption can be later confirmed in the response and claims of invalidity given by Native Americans over the Treaty of Ft. Stanwix that arises. Weston A. Dyer, “The Influence of Henry Knox on the Formation of American Indian Policy in the Northern Department, 1786-1795” (PhD dis., Ball State University, 1970), 100.

^[9]Journals of the Continental Congress, 28: 55, 423-4.

^[10]Mark Puls, Henry Knox: Visionary General of the American Revolution (New York: St. Martin’s Griffin, 2008),190.

^[11]Journals of the Continental Congress, 30: 369.

^[12]Congressional delegates and Knox also saw illegal settlement on federal lands as some akin to theft, primarily because it prevented the selling of those lands to pay off national debt. George W. Van Cleave We Have Not a Government: The Articles of Confederation and the Road to the Constitution (Chicago: The University of Chicago Press, 2017), 52.

^[13]Journals of the Continental Congress, 28: 333.

^[14]Journals of the Continental Congress, 9: i-vi.

^[15]Journals of the Continental Congress, 31: 657.

^[16]Journals of the Continental Congress, 30: 187-90.

^[17]Journals of the Continental Congress, 32: 366.

^[18]Journals of the Continental Congress, 32: 454-63.

^[19]Journals of the Continental Congress, 32: 328.

^[20]Journals of the Continental Congress, 32: 268.

^[21]Journals of the Continental Congress, 33: 478.

^[22]Massachusetts Delegates to John Hancock, May 27, 1788, in Letters of Delegates, 25: 116.; Journals of the Continental Congress, 32: 331. Knox notes that it is cheaper and more economical to request militias and attempt treaties than it was to attempt to raise and field an Army, due primarily to the failure of the United States finances and governmental system.

^[23]Journals of the Continental Congress, 32: 67.

^[24]Pennsylvania Delegates to the Pennsylvania Assembly, September 25, 1783, in Letters of Delegates, 20: 710.; Journals of the Continental Congress, 32: 67.

^[25]Journals of the Continental Congress, 33: 710-1.

^[26]Journals of the Continental Congress, 32: 327-32.

^[27]Journals of the Continental Congress, 32: 372-3. Clarity to quote added by author.

^[28]Journals of the Continental Congress, 34: 343.

^[29]Journals of the Continental Congress, 34: 343-44, 476-479.