Pen and Ink Witchcraft

by Calloway, Colin G.

  The BIA remained in the Department of Interior. But another resolution offered by General Terry was unanimously adopted:

  That in the opinion of this Commission, the time has come when the Government should cease to recognize the Indian tribes as “domestic dependent nations” except so far as it may be required to recognize them as such by existing treaties and by treaties made but not yet ratified; that hereafter all Indians should be considered and held to be individually subject to the laws of the United States, except where and while it is otherwise provided in said treaties: and that they should be entitled to the same protection from said laws as other persons owing allegiance to the Government enjoy.10

  The treaty system came under increasing attack. Henry B. Whipple, the Episcopal Bishop of Minnesota and known as a champion of Indian rights and a critic of federal Indian policy, was scathing in his indictment of the treaty-making process. It was, he wrote in the North American Review in 1864, “one of those blunders which is worse than a crime” to “treat as an independent nation a people whom we will not permit to exercise one single element of that sovereign power which is necessary to a nation’s existence.” Ostensibly negotiated between a Christian nation and the Indians for the avowed purpose of acquiring certain lands at a fair price and advancing civilization, treaties were “usually conceived and executed in fraud” and the beneficiaries were the Indian agents, politicians, and traders whose debts were settled. Whipple continued his condemnation in the New York Times in October 1868: “We recognize them as nations; we pledge them our faith; we enter on solemn treaties, and these treaties are ratified as with all foreign Powers, by the highest authority in the nation. You know—every man who ever looked into our Indian affairs knows—it is a shameless lie.”11 Colonel Richard Dodge agreed, calling the treaty system “absurd.” “We ‘covenant and agree’ to keep white men out of the limits of the new reservation, though we well know that a government constituted as ours, resting on a popular basis, and with a tide of immigration unparalleled in modern times, can by no possibility keep the faith of any such treaty.” Dodge denounced the negligence and corruption that skimmed off the annuities pledged to Indians on the reservations.12 Others, in Congress, in the press, on the frontiers, and in the army, were outraged that the treaties seemed to protect and feed Indians during the winter months, only for them to resume their raids come spring. Less than a month before he died at the Washita, Major Joel Elliott complained that the peace commissioners were “making heroes and saints” of Indians with blood on their hands. “Our whole system of treaties with Indians is a downright farce,” wrote another soldier.13

  The Peace Commission failed to establish lasting peace, incurred excessive costs, and appeared to ignore or undermine the responsibilities of the House of Representatives in Indian affairs. (The reservation lands selected were supposed to be submitted for congressional approval but never were.) The contents and costs of the treaties attracted criticism. The House resented appropriating funds to fulfill treaty obligations that the Senate had ratified. It balked at the vast increase in expenditures required by the treaties of 1867–68, and it renewed its attack on Senate control of the Indian treaty system. Debate continued during the commission’s lifetime about whether the president and Senate or the House of Representatives had the constitutional authority to conduct Indian treaties and whether Indian affairs should be under the jurisdiction of the Interior Department or the War Department. Military and civilian authorities wrangled over who should do what and how and about who was responsible for the sorry state of Indian affairs. But what killed the treaty system was a consensus in Congress that “the documents perpetuated an outdated, unrealistic, and to some unfair relationship between the United States and the Indian peoples.” Even Grant’s commissioner of Indian affairs, Ely S. Parker, a Seneca, advocated abandoning the treaty system. “A treaty,” wrote Parker, “involves the idea of a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligations incurred.” The tribes lacked organized governments capable of enforcing compliance with their treaty commitments and could not be considered sovereign nations on an equal basis with the United States, he said. Treaty making was a “cruel farce” that had given Indians a false impression of national independence.14 The issue came to a head with the Indian appropriations bill in March 1871 to which was attached a rider “that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.” Though some members of Congress expressed doubts about the constitutionality of the rider, the treaty system was effectively ended.15

  That May a delegation of chiefs that included Little Raven and Powder Face of the Arapahos and Stone Calf and Little Robe of the Cheyennes, with John Simpson Smith and Philip McCusker as interpreters, arrived in Washington, D.C. They met President Grant. They traveled home via New York City, Boston, Philadelphia, and Chicago. In Boston, they toured Harvard College. At a large assembly in the city, Stone Calf and Little Raven gave long speeches. Stone Calf declared the government had not kept the promises made at Medicine Lodge, and he appealed in vain for an end to railroad construction across Cheyenne country. In New York they visited the Central Park Zoo (where said Little Raven, “My eyes saw more than they could carry”) and sat for a photograph (figure C.1). It was the last known photograph of Smith. He died a month later, back in Indian Territory with his Cheyenne family.16 It was just three months after the appropriations bill ended the treaty-making era. Perhaps it was a fitting time for the sixty-one-year-old veteran of numerous treaty councils and several delegations to Washington (and a massacre) to depart the scene.

  The end of treaty making did not, of course, end the transfer of Indian lands into American hands. The United States continued to acquire land through agreements, executive orders, “conventions,” and other treaty substitutes.17 Unlike treaties that were ratified by the Senate alone, agreements required approval by both houses of Congress. Congress continued to authorize commissioners to go to reservations and obtain land cessions, and it then ratified the agreements by incorporating the texts into federal statutes. Statutes, rather than treaties, came to define Indian rights.18 It marked a critical shift in US-Indian relations: after more than a century of nation-to-nation dealings with the tribes, the United States now treated them more like domestic entities, bringing them more firmly into the American political system and more directly under colonial administration. Lewis Downing, principal chief of the Cherokees, thought the change ominous: “it appears to us that when once cut loose from our treaty moorings,” he wrote the Board of Indian Commissioners in 1870, “we will roll and tumble upon the tempestuous ocean of American politics and congressional legislation, and shipwreck will be our inevitable destination.”19

  FIGURE C.1 Indian delegation, New York, 1871. The members of the delegation pictured here are (seated) Little Raven (front left, with cane), Bird Chief, Little Robe, and a Wichita chief named Buffalo Goad. Standing left to right are the interpreter Edmund Guerrier (with the long hair), the Indian agent Mahlon Stubbs, and John Simpson Smith, leaning with his arm on the shoulder of the Comanche interpreter Philip McCusker. Smith died shortly after he returned home. (Smithsonian Institution, National Anthropological Archives and Human Studies Film Archives)

  The 1871 resolution did not put an end to existing treaty relations between the United States and the tribes, but they, too, came under assault. Stand Watie and his nephew Elias C. Boudinot established a tobacco company on Cherokee land in the 1860s and refused to pay federal taxes on the business, arguing that the Treaty of 1866 exempted them from the Internal Revenue Act of 1868. Article 10 of the treaty stated that any resident of the Cherokee nation “shall have the right to sell any products of his farm … without restraint, paying any tax thereon which is now or may be levied by the United States.” In its decision on the Cherokee
Tobacco case of 1870, issued just a couple of months after Congress voted to end treaty making, the US Supreme Court held that an act of Congress could supersede a prior treaty.20

  Boudinot lost his property in order to pay back taxes. Having rested his hopes on a treaty and lost, he now denounced treaties as a charade and argued for ending the special legal status of the tribes and for abolishing Indian Territory. He maintained that the Indians’ only hope lay in doing away with tribal governments, acquiring citizenship, and ending common landholdings. His position also had something to do with the fact that he tried to restore his fortunes by cultivating relations with railroad companies whose land grants depended on Indian land cessions or the dissolution of Indian Territory. Boudinot lobbied for territorial government, grants to railroads, and opening up Indian lands. He claimed he was acting in the best interests of the Cherokee people, but most Cherokees regarded him as a self-serving traitor: like father, like son. Unlike his father, he was not murdered, although his life was threatened. He pursued various business schemes and continued to argue for the abolition of Indian Territory, reopening old divisions between the Boudinot-Watie faction and the majority of Cherokees.21

  The United States broke the Treaty of Fort Laramie six years after it was signed. In 1874 George Custer led an expedition into the Black Hills of South Dakota and verified reports of gold in the region. A government commission offered to purchase the Black Hills, but the Sioux dismissed its offers; Sitting Bull said that the hills were simply not for sale. The United States took them anyway. The army sent an ultimatum ordering all Sioux and Northern Cheyenne bands onto the reservations by January 31, 1876, and then launched a three-pronged “pacification campaign” against the “hostiles” who refused to come in. In June, Crazy Horse, the renowned Oglala war chief, turned back General George Crook at the Battle of the Rosebud and the Sioux and Cheyennes annihilated Custer’s command at the Battle of the Little Bighorn a week later. But the army hunted down the various bands in the next year or two. Sitting Bull fled to Canada; Crazy Horse surrendered in 1877 and was bayoneted to death in a guardroom scuffle.22 Another commission, led by George Manypenny, arrived on the reservations to obtain consent to the transfer to the United States of the “unceded territory” that included the Black Hills. Congress cut funding for rations to the agencies until the Lakotas agreed to cede the land. People recalled having to negotiate while under the guns of American soldiers. The Lakotas protested but the reservation chiefs signed. The commissioners managed to secure the agreement of only about 10 percent of the adult males—about 65 percent short of what the Treaty of Fort Laramie required—but in the wake of the “Custer Massacre” the government was in no mood to worry about such niceties. In February 1877 Congress passed a law taking the Black Hills and extinguishing all Sioux rights outside the Great Sioux Reservation. The “Great Sioux Nation” had shrunk from about 134 million acres as recognized in the 1851 Treaty of Fort Laramie to less than 15 million acres.

  Ten years later, Congress passed the Dawes, or General Allotment, Act. The United States had included a provision for allotting lands to individuals who met certain requirements in about seventy of its Indian treaties, and most treaties negotiated after the mid-nineteenth century contained clauses providing for the division of tribal lands in severalty.23 But the new legislation, named after Senator Henry Dawes of Massachusetts who introduced it, triggered a renewed and massive assault on Native American landholdings. The reservations established by treaties like Medicine Lodge were supposed to be places where, under the tutelage of agents, farmers, and teachers, Indians would learn new ways and new values and gradually cease to be Indians. Instead, as Indian people resisted the imposition of alien ways and clung to traditional values in what remained of their homelands, reformers saw reservations functioning as obstacles to progress. Communal landholding and the Natives’ moral economy of sharing seemed to be holding them back. Reformers and the government lost patience with the reservation system; progress surely required breaking up the reservations into plots of private property and instilling in Indian people the values of hard work, thrift, and individual competition that they would need to survive in the capitalist world that was about to engulf them. Under the Dawes Act, reservation lands were surveyed, divided up, and allotted in 160-acre parcels to the heads of families. “Surplus lands” were opened for sale to non-Indians. The government dispatched commissions into Indian country to put allotment into effect and reservation lands established by treaties were opened for settlement.

  The Sioux Act of 1888 applied the allotment act to the Great Sioux Reservation, dividing the Lakotas into six separate reservations and making “surplus lands” available for settlement. Congress passed another Sioux Act in 1889 and dispatched another commission, this one led by General George Crook, who told the Indians that a flood was coming and they must save what they could or see it all swept away. The Lakotas in their own councils had decided against agreement with the US government and already presented a united front. Finding that “it was impossible to deal with the Indians as a body in general councils,” the commissioners went to work “to convince individuals that substantial advantages to the Indians as a whole would result from an acceptance of the bill.” For a time, Crook said in his report, “the task seemed almost hopeless, but persistence prevailed and interest was awakened. As soon as the question became debatable the situation changed and success was assured.” Congress cut the amount of rations the commission promised, and another nine million acres were stripped away from the reservation. Angry and divided, Lakota people watched as American settlers moved onto lands that less than twenty-five years earlier had been set apart for the Indians’ “absolute and undisturbed use and occupation.”24

  Between 1889 and 1893, the Cherokee Commission (frequently known as the Jerome Commission after its chair, David H. Jerome) purchased fifteen million acres of land in what was to become the State of Oklahoma. In addition to the Cherokees, it made agreements with the Iowas, Sac and Fox, Kickapoos, Potawatomis, Shawnees, Wichitas, Tonkawas, Poncas, Pawnees, Choctaws, and Chickasaws, and with the five tribes whose reservations were established by the treaties they made at Medicine Lodge. Restricted by Congress to pay no more than $1.25 per acre, the commissioners frequently resorted to deception, coercion, and intimidation.25

  The tribes who had been at Medicine Lodge knew that the treaty was supposed to run until 1897 and saw no reason to negotiate for a reduction in their land before then. When the commissioners arrived on the Cheyenne and Arapaho reservation in 1890, the Arapahos were willing to consider their offers but most Cheyennes refused to sell or even to discuss selling. “The Great Spirit knows what you are saying and we don’t propose to give up this land and chop it up and take farms for the Indians in this reservation till the seven years are up,” declared a Cheyenne named Little Medicine. But the commissioners stuck to their task. With the help of George Bent and a team of attorneys (who were handsomely compensated for their services from the money paid to the Indians) they eventually managed to obtain the signatures they needed, and they acquired the Cheyenne and Arapaho land for about fifty cents per acre. In the 1960s the tribes brought their case before the Indian Claims Commission, arguing that the $1.5 million they received for the lands they ceded in 1890 was “unconscionable.” The Justice Department agreed and the government settled all the claims of the Southern Cheyennes and Southern Arapahos for $15 million.26

  The commission had secured nine cession agreements from other tribes by the time it arrived on the Kiowa, Comanche, and Apache reservation. There, its primary purpose was to collect the signatures of three-fourths of the adult male Indians as a prerequisite for any further land cessions. The commission met opposition from the start. The old Yamparika Comanche Howea, or Gap in the Woods, one of only two living signers of the Medicine Lodge treaty, presented the commissioners with a copy of the treaty. Stumbling Bear, the surviving signer among the Kiowas, and other old Indians recalled the pledges the United St
ates had made to them and refused to negotiate before the treaty terms expired. Big Tree cited the condition of the Cheyennes and Arapahos who had accepted allotments as reason enough for the Kiowas to resist. But the commissioners pointed to the clause in the treaty that the president could “at any time, order a survey of the reservation” and that Congress could “fix the character of the title held by each [Indian].” The proceedings, writes Native scholar Blue Clark, “rapidly grew confused, turned to turmoil, and finally degenerated into outright fraud.”27

  Indians accused the commissioners and their interpreters of employing deception and coercion. “When the President of the United States sent you here,” asked a Kiowa named Apiatan, “did he tell you also, outside the general council, to get signers in a dishonest way?” Jerome was furious—“I will not be talked to that way”—and declared the council at an end. The Indians “left in an uproar,” and Jerome left with 456 signatures—more than the three-fourths he needed according to the Indian agent’s low count of 562 eligible signers. (Interior Department evidence indicated that the actual number of adult Indian men was between 631 and 725.) Suspecting they had been deceived by incorrect translation of the terms of the agreement they had signed, Lone Wolf and a group of Indians asked to see the document and to have their names erased. Both requests were denied.28

  Satank’s son played a key role as an interpreter. A graduate of Pratt’s Indian Industrial School in Carlisle, he was a Presbyterian missionary and principal of an Indian school near Anadarko. He had taken a new name, Joshua Given or Givens, after the agency physician. Kiowas accused him of selling them out to the government. As the commissioners went about their work and compiled signatures, the son of the great war chief had to be guarded against irate Kiowas. Warned that he would pay for his misdeeds with his life, Joshua died shortly after; some said it was the result of a curse. The commission’s deception continued even back in Washington, where a new document was substituted containing counterfeit signatures. By various means, they came up with enough signatures to satisfy the three-quarter consent clause of the Medicine Lodge treaty.29 The reservation would be divided up into 160-acre allotments and the remainder of the lands opened for settlement.