Pen and Ink Witchcraft

by Calloway, Colin G.

  The United States also has an obligation under international human rights to ensure the survival of distinctive ethnic groups. Article 37 of the United Nations Declaration on the Rights of Indigenous Peoples states: “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”50 One hundred forty-three nations adopted the declaration in 2007; eleven abstained, and only Australia, Canada, New Zealand, and the United States voted against it. Those four nations subsequently reversed their position. The United States signed on to the declaration in December 2010—the last nation to do so.

  Treaties that functioned so often to separate Native peoples from their lands and cultures also established Native rights and recognized tribal sovereignty; when observed and honored in good faith, they have the potential to be instruments of restorative justice and healing. As tribal leaders, lawyers, judges, and academics wrestle with the meanings and implications of the specific terms of treaties, the relationships those treaties were supposed to establish between Indian tribes and the United States await renewal. Restoring treaty relations between the United States and Native nations offers a path toward reconciliation and cooperation based on good relations between the groups—the very thing that Indian people understood treaties to accomplish in the first place. Looking back to treaty making in the colonial era, Native law professor Robert A. Williams, Jr., recalls “a time when the West had to listen seriously to these indigenous tribal visions of how different peoples might live together in relationships of trust, solidarity, and respect.”51 Perhaps it is time to do so again.

  Of course, a treaty-based relationship between Indian nations and the United States would meet considerable opposition. Many non-Indians resist treaty rights in any shape or form—especially as they see them being mobilized by modern tribal governments—and they complain that they suffer injustices when Indians successfully assert those rights. Transforming “defenses of self-interest into defenses of core American values,” conservative activists denounce the granting of “special rights” to historically disadvantaged Americans as un-American and a violation of the nation’s commitment to equal rights. They lament “that ‘ordinary,’ forgotten Americans have become the new victims of a nation that panders to the interests of former victims, thereby sacrificing the equal rights of deserving citizens.” No rights seem more special than Indian treaty rights, which elevate Indians to a class of “supercitizens.” Treaty commitments made in very different times and circumstances should not apply in modern America, they say.52 Whatever the merits and motivations of their arguments, some of the people who oppose Indian treaty rights would surely agree with the Ottawa chief Egushawa: treaties do indeed contain “pen and ink witch-craft, which they can make speak things we never intended, or had any idea of, even an hundred years hence.”

  { Appendix }

  THE TREATIES

  The Treaty of Fort Stanwix

  [Edmund B. O’ Callaghan, ed. Documents Relating to the Colonial History of the State of New York. 15 vols. (Albany: Weed, Parsons, and Co., 1853–57), 8: 135–38.]

  Deed Determining the Boundary Line between the Whites and the Indians

  To all to whom, These presents shall come or may concern. We the Sachems & Cheifs of the Six confederate Nations, and of the Shawanese, Delawares, Mingoes of Ohio and other Dependant Tribes on behalf of our selves and of the rest of our Several Nations the Cheifs & Warriors of whom are now here convened by Sir William Johnson Baronet His Majestys Superintendant of our affairs send GREETING.

  WHEREAS His Majesty was graciously pleased to propose to us in the year one thousand seven hundred and sixty five that a Boundary Line should be fixed between the English & us to ascertain & establish our Limitts and prevent those intrusions & encroachments of which we had so long and loudly complained and to put a stop to the many fraudulent advantages which had been so often taken of us in Land affairs which Boundary appearing to us a wise and good measure we did then agree to a part of a Line and promised to settle the whole finally when soever Sir William Johnson should be fully empowered to treat with us for that purpose[.]

  AND WHEREAS His said Majesty has at length given Sir William Johnson orders to compleat the said Boundary Line between the Provinces and Indians in conformity to which orders Sir William Johnson has convened the Cheifs & Warriors of our respective Nations who are the true and absolute Proprietors of the Lands in question and who are here now to a very considerable Number.

  AND WHEREAS many uneasinesses and doubts have arisen amongst us which have given rise to an apprehension that the Line may not be strictly observed on the part of the English in which case matters may be worse than before which apprehension together with the dependant state of some of our Tribes and other circumstances which retarded the Settlement and became the subject of some Debate Sir William Johnson has at length so far satisfied us upon as to induce us to come to an agreement concerning the Line which is now brought to a conclusion the whole being fully explained to us in a large Assembly of our People before Sir William Johnson and in the presence of His Excellency the Governor of New Jersey the Commissioners from the Provinces of Virginia and Pensilvania and sundry other Gentlemen by which Line so agreed upon a considerable Tract of Country along several Provinces is by us ceded to His said Majesty which we are induced to and do hereby ratify & confirm to His said Majesty from the expectation and confidence we place in His royal Goodness that he will graciously comply with our humble requests as the same are expressed in the speech of the several Nations addressed to His Majesty through Sir William Johnson on Tuesday the first of the Present Month of November wherein we have declared our expectation of the continuance of His Majestys Favour and our desire that our ancient Engagements be observed and our affairs attended to by the officer who has the management thereof enabling him to discharge all these matters properly for our Interest. That the Lands occupied by the Mohocks around their villages as well as by any other Nation affected by this our Cession may effectually remain to them and to their Posterity and that any engagements regarding Property which they may now be under may be prosecuted and our present Grants deemed valid on our parts with the several other humble requests contained in our said Speech.

  AND WHEREAS at the settling of the said Line it appeared that the Line described by His Majestys order was not extended to the Northward of Oswegy or to the Southward of Great Kanhawa river We have agreed to and continued the Line to the Northward on a supposition that it was omitted by reason of our not having come to any determination concerning its course at the Congress held in one thousand seven hundred and sixty five and in as much as the Line to the Northward became the most necessary of any for preventing encroachments at our very Towns & Residences We have given the Line more favorably to Pensylvania for the reasons & considerations mentioned in the Treaty, we have likewise continued it South to Cherokee River because the same is and we do declare it to be our true Bounds with the Southern Indians and that we have an undoubted right to the Country as far South as that River which makes our Cession to His Majesty much more advantageous than that proposed,

  Now THEREFORE KNOW YE that we the Sachems and Cheifs aforementioned Native Indians and Proprietors of the Lands herein after described for and in behalf of ourselves and the whole of our Confederacy for the considerations herein before mentioned and also for and in consideration of a valuable Present of the several articles in use amongst Indians which together with a large sums of money amounts in the whole to the sum of Ten thousand four Hundred and Sixty pounds seven shillings and three pence sterling to us now delivered and paid by Sir William Johnson Baronet His Majestys sole Agent and superintendant of Indian affairs for the Northern department of America in the Name and on behalf of our Soverreign Lord George the third by the Grace of God of Great Britain France and Ireland King Defender
of the Faith the receipt whereof we do hereby acknowledge WE the said Indians HAVE for us and our Heirs and Successors granted bargained sold released and confirmed and by these presents DO Grant bargain sell release and confirm unto our said Sovereign Lord King George the third, ALL that Tract of Land situate in North America at the Back of the British Settlements bounded by a Line which we have now agreed upon and do hereby establish as the Boundary between us and the British Colonies in America beginning at the Mouth of Cherokee or Hogohege River where it emptys into the River Ohio and running from thence upwards along the South side of said River to Kittaning which is above Fort Pitt from thence by a direct Line to the nearest Fork of the west branch of Susquehanna thence through the Allegany Mountains along the South side of the said West Branch untill it comes opposite to the mouth of a Creek called Tiadaghton thence across the West Branch and along the South Side of that Creek and along the North Side of Burnetts Hills to a Creek called Awandae thence down the same to the East Branch of Susquehanna and across the same and up the East side of that River to Oswegy from thence East to Delawar River and up that River to opposite where Tianaderha falls into Susquehanna thence to Tianaderha and up the West side of its West Branch to the head thereof and thence by a direct Line to Canada Creek where it emptys into the wood Creek at the West of the Carrying Place beyond Fort Stanwix and extending Eastward from every part of the said Line as far as the Lands formerly purchased so as to comprehend the whole of the Lands between the said Line and the purchased Lands or settlements, except what is within the Province of Pensilvania, together with all the Hereditaments and Appurtenances to the same belonging or appertaining in the fullest & most ample manner and all the Estate Right Title Interest Property Possession Benefit claim and Demand either in Law or Equity of each & every of us of in or to the same or any part thereof TO HAVE AND TO HOLD the whole Lands and Premises hereby granted bargained sold released and confirmed as aforesaid with the Hereditaments and appurtenances thereunto belonging under the reservations made in the Treaty unto our said Sovereign Lord King George the third his Heirs & Successors to and for his and their own proper use and behoof for ever.

  In WITNESS whereof We the Cheifs of the Confederacy have hereunto set our marks and Seals at FORT STANWIX the fifth day of November one Thousand seven hundred and sixty eight in the ninth year of His Majestys Reign

  for the Mohocks

  TYORHANSERE als ABRAHAM

  for the Oneidas

  CANAGHQUIESON

  for the Tuscaroras

  SEQUARUSERA

  for the Onondagas

  OTSINOGHIYATA als BUNT

  for the Cayugas

  TEGAAIA

  for the Senecas

  GUASTRAX

  Sealed and delivered and the consideration paid in the presence of

  Wm Franklin Governor of New Jersey

  Fre. Smyth Cheif Justice of New Jersey

  Thomas Walker Commissioner for Virginia

  Of the Council of Pensylvania

  Richard Peters

  James Tilghman

  The above Deed was executed in my presence at Fort Stanwix the day and year above Written

  W JOHNSON

  The Treaty of New Echota

  [Charles J. Kappler, comp. Indian Affairs: Laws and Treaties. Vol. 2: Treaties. (Washington, D.C.: Government Printing Office, 1904), 439–49.]

  Articles of a treaty, concluded at New Echota in the State of Georgia on the 29th day of Decr. 1835 by General William Carroll and John F. Schermerhorn commissioners on the part of the United States and the Chiefs Head Men and People of the Cherokee tribe of Indians.

  WHEREAS the Cherokees are anxious to make some arrangements with the Government of the United States whereby the difficulties they have experienced by a residence within the settled parts of the United States under the jurisdiction and laws of the State Governments may be terminated and adjusted; and with a view to reuniting their people in one body and securing a permanent home for themselves and their posterity in the country selected by their forefathers without the territorial limits of the State sovereignties, and where they can establish and enjoy a government of their choice and perpetuate such a state of society as may be most consonant with their views, habits and condition; and as may tend to their individual comfort and their advancement in civilization.

  And whereas a delegation of the Cherokee nation composed of Messrs. John Ross Richard Taylor Danl. McCoy Samuel Gunter and William Rogers with full power and authority to conclude a treaty with the United States did on the 28th day of February 1835 stipulate and agree with the Government of the United States to submit to the Senate to fix the amount which should be allowed the Cherokees for their claims and for a cession of their lands east of the Mississippi river, and did agree to abide by the award of the Senate of the United States themselves and to recommend the same to their people for their final determination.

  And whereas on such submission the Senate advised “that a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi river.”

  And whereas this delegation after said award of the Senate had been made, were called upon to submit propositions as to its disposition to be arranged in a treaty which they refused to do, but insisted that the same “should be referred to their nation and there in general council to deliberate and determine on the subject in order to ensure harmony and good feeling among themselves.”

  And whereas a certain other delegation composed of John Ridge Elias Boudinot Archilla Smith S. W. Bell John West Wm. A. Davis and Ezekiel West, who represented that portion of the nation in favor of emigration to the Cherokee country west of the Mississippi entered into propositions for a treaty with John F. Schermerhorn commissioner on the part of the United States which were to be submitted to their nation for their final action and determination:

  And whereas the Cherokee people at their last October council at Red Clay, fully authorized and empowered a delegation or committee of twenty persons of their nation to enter into and conclude a treaty with the United States commissioner then present, at that place or elsewhere and as the people had good reason to believe that a treaty would then and there be made or at a subsequent council at New Echota which the commissioners it was well known and understood, were authorized and instructed to convene for said purpose; and since the said delegation have gone on to Washington city, with a view to close negotiations there, as stated by them notwithstanding they were officially informed by the United States commissioner that they would not be received by the President of the United States; and that the Government would transact no business of this nature with them, and that if a treaty was made it must be done here in the nation, where the delegation at Washington last winter urged that it should be done for the purpose of promoting peace and harmony among the people; and since these facts have also been corroborated to us by a communication recently received by the commissioner from the Government of the United States and read and explained to the people in open council and therefore believing said delegation can effect nothing and since our difficulties are daily increasing and our situation is rendered more and more precarious uncertain and insecure in consequence of the legislation of the States; and seeing no effectual way of relief, but in accepting the liberal overtures of the United States.

  And whereas Genl William Carroll and John F. Schermerhorn were appointed commissioners on the part of the United States, with full power and authority to conclude a treaty with the Cherokees east and were directed by the President to convene the people of the nation in general council at New Echota and to submit said propositions to them with power and authority to vary the same so as to meet the views of the Cherokees in reference to its details.

  And whereas the said commissioners did appoint and notify a general council of the nation to convene at New Echota on the 21st day of December 1835; and informed them that the commissioners would be prepared to make a treaty with the Cherokee people
who should assemble there and those who did not come they should conclude gave their assent and sanction to whatever should be transacted at this council and the people having met in council according to said notice.

  Therefore the following articles of a treaty are agreed upon and concluded between William Carroll and John F. Schermerhorn commissioners on the part of the United States and the chiefs and head men and people of the Cherokee nation in general council assembled this 29th day of Decr 1835.

  ARTICLE 1

  The Cherokee nation hereby cede relinquish and convey to the United States all the lands owned claimed or possessed by them east of the Mississippi river, and hereby release all their claims upon the United States for spoliations of every kind for and in consideration of the sum of five millions of dollars to be expended paid and invested in the manner stipulated and agreed upon in the following articles But as a question has arisen between the commissioners and the Cherokees whether the Senate in their resolution by which they advised “that a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi river” have included and made any allowance or consideration for claims for spoliations it is therefore agreed on the part of the United States that this question shall be again submitted to the Senate for their consideration and decision and if no allowance was made for spoliations that then an additional sum of three hundred thousand dollars be allowed for the same.