The Discourse of British and US Treaties in the Old Northwest, 1790-1843

LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL University of Western Ontario

This comparison of and British treaties with Algonquian peoples of the Old Northwest (in areas currently located within the boundaries of , Michigan and Ontario) was originally conceived as an analysis of differences and similarities of the discourses used in three closely matched sets of treaties on either side of the current Ontario- Michigan border. In this early stage of analysis, we found fundamental differences between the British and US treaties, positing that the British treaties were essentially land deeds as opposed to, especially, the earlier ones in the US, which had the form of agreements between groups. The substance of all these treaties rested on a long history of negotiation between European governments and First Nations. When the British acquired de facto control of Quebec in 1760, their domination of the interior was established. Sir William Johnson, the Brit­ ish Superintendent of Indian Affairs in the Northern District, and his agents spread the word of the British victory over the French to the Algonquian Nations in Detroit through Councils at Pittsburg, Niagara and Detroit in 1760 and then in Miami and Detroit in 1761. At the same time, settler incursions into First Nations lands provoked a Council in Philadel­ phia in 1761, and the Crown reacted to the possible complicity of colonial officials in such action. The Royal Instructions to the Governor of New York were direct: Whereas the peace and security of our Colonies and Plantations upon the Continent of North America, does greatly depend upon the amity and Alliance of the several Nations ... bordering upon the said Colo­ nies and upon a just and faithful observance of those Treaties and Compacts, which have been heretofore Solemnly entered into with the said Indians ... And Whereas notwithstanding the repeated Instruc­ tions ... the Indians have made and do still continue to make great Complaints, that Settlements have been made and possession taken of Lands, the property of which, they have by Treaties reserved to them­ selves ... We therefore taking this matter into our Royal Consider­ ation, as also the fatal Effects, which would attend a Discontent among the Indians ... and to keep inviolable the Treaties and Com-

Papers of the 34th Algonquian Conference, ed. H.C Wolfart (Winnipeg: University of Manitoba, 2003), pp. 371-392. 372 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

pacts which have been entered into with them, Do hereby strictly enjoin and command that neither yourself nor any Lieutenant Gover­ nor pass any Grant or Grants to any person whatever, of any Lands within or adjacent to the Territories possessed or occupied by the said Indians ... [I]t is therefore Our Express will and pleasure, that when any application shall be made to you, for License to purchase Lands of the Indians, you do forbear to grant such license until you shall have first transmitted to us, by our Commissioner of Trade and Plantations ... and have received further directions thereon. (9 December 1761, Royal instructions to Governor Monckton; Sullivan 1921:341-2) In the fall of 1761, William Johnson had just held a conference with the Algonquian Nations first at Miami on 25 to 28 September and then at Detroit until 3 October. At the conclusion of the Detroit conference, Johnson reported to General Amherst: ... it is with great satisfaction I now inform your Excellency that I have left the Western Indians Extremely well disposed towards the English, and I am of opinion that matters are settled on so stable a foundation there, that unless greatly Irritated thereto, they will never break the Peace established with them, and there now only remains to compleat [sic] every thing by calling down the Six Nations to a meet­ ing, and settling all matters with them ... (Sullivan 1921:330) The settler incursions were not satisfactorily resolved in the south­ eastern part of the region and a revolt erupted on just that issue, led by the Northwestern Confederacy and Pontiac. The protection of Indian land and the preservation of trade were major concerns for the Board of Trade and Plantations. In June 1763, the Board proposed that the King issue a Proc­ lamation to assert policy on the issue: In the meantime We humbly propose that a Proclamation be immedi­ ately issued by your Majesty as well on Account of the late Com­ plaints of the Indians and the actual Disturbances in Consequence, As of your Majesty's fixed Determination to permit no grant of Lands nor any settlements to be made within certain fixed Bounds, under pre­ tence of Purchase or any other Pretext whatever, leaving all that Terri­ tory within it free for the hunting Grounds of those Indian Nations Subjects of your Majesty and for the freetrad e of all your subjects ... (Shortt & Doughty 1907:111) In October of that year, the Crown responded with the Royal Procla­ mation of 1763. A brief outline of its ten sections (below) illustrates the primary issues addressed. The Proclamation set up: 1. the boundaries of four governments: Quebec, East Florida, West Florida and Grenada BRITISH AND US TREATIES IN THE OLD NORTHWEST 373

2. Governors, Councils and Representatives of the people "to make, consti­ tute, and ordain laws, Statutes, and Ordinances for the Public Peace, Wel­ fare, and good Government" 3. power for Governors and Councils to "settle and agree ... for such Lands, Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of 4. the disbursement of land "without Fee or Reward" for Officers and Soldiers of the armies and Navy 5. reserve lands ("not ceded or purchased by us") as hunting grounds for Nations or Tribes of Indians 6. boundaries of the Indian territories 7. the prohibition of the settlement or purchase of Indian lands by individual subjects; and licensing trade 8. the removal of "non-Indians" from "Indian lands" 9. the procedure for the Crown to aquire land from First Nations 10. the removal of "refugees" (who had committed treason, murders, felonies, etc.) from Indian territories That proclamation and the instructions issued under it contained British policy for the protection of the First Nations. That policy was modified in a territorial sense by the Quebec Act of 1774 and the Instruc­ tions issued under it. By that Act, Quebec assumed responsibility for the administration of what had been the Indian territories of the old north­ west. Because civil law applied to the region, settlers would have to acquire land through the Governor of Quebec. The overall policy was that only the Crown could acquire First Nation's land and then only after a public meeting of the First Nations affected. Only following such an acquisition would the Crown open areas for settlement. This was spelled out clearly in the Royal Proclamation: And whereas great Frauds and Abuses have been committed in pur­ chasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, 374 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie ... (Shortt & Doughty 1907:122) That policy, which authorized the colonial governors to convene such a public meeting, was changed by the Quebec Act so that only the Governor of Quebec could initiate such a meeting. That was one of the issues that provoked the but the policy remained as the umbrella for relations between the First Nations and the colonies in British North America. With the migration of many American settlers loyal to the British Crown, the boundaries of Quebec were changed later so that settlers in what became Upper Canada area would live under Brit­ ish Law after 1791.

THE EARLY TREATIES, 1763-1795 The early treaties illustrate the different approaches taken by treaty-mak­ ers of the US and Upper Canada. If, as is suggested by several authors (Surtees 1988, St. Germain 2001), treaties in the US and Upper Canada both have their roots in the Royal Proclamation, a close reading of the treaty documents shows that US and British treaties reflected a somewhat different focus on those aspects of First Nation relations that were addressed in the Royal Proclamation. In the table of treaties below, the numbers in square brackets indicate the equivalent (or near equivalent) section in the Royal Proclamation. The Huron Treaty had the least over­ lap with the Royal Proclamation, with only the removal of refugees (RP§10), broadly defined, suggested as an overlap. The Greenville Treaty showed the greatest overlap, with fiveo f six sections of the Royal Procla­ mation addressed. Section 10 of the Royal Proclamation, which is not directly represented in the Greenville Treaty, addressed the removal of refugees. However, one could make a case that the restoration of (non- Native) prisoners in the Greenville Treaty comes close to a match. Alter­ natively, the focus of the McKee Treaty was on the acquisition of land (RP§9), with the boundaries of that grant and the reserves carefully out­ lined (RP§6). The "reserving" of these two plots of land were a condition for the "purchase" or grant.1 BRITISH AND US TREATIES IN THE OLD NORTHWEST 375

Royal Proclam­ Huron Treaty, McKee Treaty, Greenville Treaty, ation, 1763 1764 1790 1795 (sections) (articles; UC) (paragraphs; UC) (articles; US)

[1-4. not relevant] 1. establish peace 1. grant land; de­ 1. establish peace 5. reserve lands 2. restore prison­ fine boundaries 2. restore prisoners ("not ceded or ers "deserters, of grant [§9] [§10] purchased by fugitives, or 2. define and re­ 3. cede land and us") as hunting slaves" [§10] serve the Huron make reserves grounds for Na­ 3. means for airing Reserve [§5, 6] [§5, §6] tions or Tribes of grievances. 3. define and re­ 4. relinquish Indians 4. transferral of serve the Huron claims to Indian 6. set boundaries of "right to all the Church Reserve lands; set an the Indian terri­ lands above their [§5, 6] annuity or goods tories village..." from 4. specify rights to and services 7. forbid settlement French to the land granted to related to farm­ or purchase of British Crown Crown [§9] ing [§9] Indian lands by 5. a promise to 5. make the deed 5. allow the sale of individuals; out­ secure "Passage irrevocable [§9] Indian land only line licensing from Lake Erie to to the US [§7] trade the Detroit... 6. set up punish­ 8. require removal against any at­ ment for white of non-Indians tempts of an squatters [§6, §8] from Indian lands enemy"; and to 7. establish hunting 9. means by which make warriors rights on ceded the Crown could available to fight land [§5] aquire land from against or 8. license trade First Nations "annoy" British with Tribes [§7] 10. set out means enemies 9. how to deal with of removing refu­ hostilities on gees (those who either side had committed 10. void other trea­ treason, murders, ties prior to 1783 felonies, etc.) from Indian territories

1. As Surtees noted, "the Ottawas, Hurons, Chippewas, and who agreed to the McKee Purchase in 1790 retained for their exclusive use a substantial tract known as the Huron Reserve and a smaller, one, the Huron Church Reserve, both fronting the ... Deputy Superintendent of Indian Affairs Alexander McKee, who negoti­ ated this sale, explained that the inclusion of the reserve provisions was the only way he could secure agreement for the treaty" (1988:203). 376 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

While the Upper Canada treaties (or surrenders) examined in this paper were quite similar in form in that each focused exclusively on the acquisition of land, the format of an earlier Huron Treaty of 1764 falls somewhere between the Greenville and the McKee treaties. This treaty began with "Articles of Peace, Friendship and Alliance concluded by Sir William Johnson Baronet ... on behalf of his Brittanic Majesty with the Huron Indians of the Detroit, at Niagara on the 18th day of July 1764" (NAC: R216-284-7-E:136-8). The Huron Treaty, unlike the later McKee Treaty and other later British treaties with First Nations, was predomi­ nantly a military agreement in which no lands were sold or purchased. In the US, the early treaties covered a greater number of the issues addressed in the Royal Proclamation than those of Upper Canada. The Greenville "treaty peace" of 1795 set the boundaries of US and Aborigi­ nal lands, set up a system for licensing trade in First Nations territory, demanded the removal of settlers from First Nations lands, re-entrenched hunting rights on ceded lands not populated by settlers and set out the respective rights of passage on US and Indian lands. In contrast, the McKee Treaty of 1790 illustrates the focus in Upper Canada on the process for acquiring lands from First Nations as pre­ scribed by the Royal Proclamation. According to Surtees, the 1790-1812 era of treaty making in Upper Canada was marked by three features, two of which are evident in the McKee Treaty: "the early treaties were con­ cluded through a single, one-time payment" and "the Indians' wish, in some instances, to retain specific locations for their exclusive use" (1988:203). As we examine the McKee Treaty more closely, we find that the exclusive focus of this agreement was to acquire First Nations lands in accordance with the Instructions for the Management of Indians under the Royal Proclamation. The differences between the Huron Treaty and the McKee Treaty illustrate the change in colonial policy from military treaties to the later land cessions that marked treaty-making in Upper Canada through Con­ federation. Key differences are found in the agency of the treaties. We find the differences between the land purchase and "treaty peace" approach in the initial paragraphs of the almost contemporary McKee Treaty and . The McKee Treaty, signed 19 May 1790, began with an initial paragraph consisting of single sentence of 289 words that outlined the sale of a tract of land stretching from above the BRITISH AND US TREATIES IN THE OLD NORTHWEST 377 center of Lake Erie to the Detroit river: Know all men by these presents, that we the principal Village and War Chiefs of the Ot-ta-wa, Chip-pa-wa, Pot-to-wa-to-my and Hu-ron, Indians Nations of Detroit for and in Consideration of the Sum of Twelve Hundred Pounds Currency of the Province of Quebec, at Five Shillings per Spanish Dollar for valuable Wares and Merchandise to us delivered by the hands of Alexander McKee Esquire Deputy Agent of Indian Affairs the receipt whereof we do hereby acknowledge, [insertion: have by and with the consent of the whole of our said Nations, given, granted, enfeoffed, alienated, and confirmed and by these presents do give, grant, enfeoff, alien and confirm unto] His Majesty George the Third, King of Great Britain, France and Ireland, Defender of the Faith, &c &c &c a certain Tract of land ... (Canada 1891:1-2)2 Except for the passive phrase "delivered by the hands of Alexander McKee," the agency of the treaty is presented as exclusively that of the named First Nations who "acknowledge [payment]" and "grant, enfeoff, alien and confirm unto His Majesty." The structure of the Greenville Treaty followed that of "peace" trea­ ties more generally. That is, this treaty consists of a list of articles, the first of which established peace and restored "harmony:" A treaty peace between the United States of America and the Tribes of Indians, called the Wyandots Shawanoes Ottawas, Chipe- was, Putawatimes, Miamis, Eel-river, 's, Kickapoos, Pianka- shaws, and . To put an end to a destructive war, to settle all controversies, and to restore harmony and a friendly intercourse between the said United States, and Indian tribes ... As noted earlier, the Huron Treaty (1764) and the Greenville Treaty (1795) were "between" two parties, but agency in the McKee Treaty (1790) was limited to First Nations granting land to the King and acknowledging the one-time payment of goods and merchandise deliv­ ered "by the hand of Alexander McKee" as payment. It was a sale as required by the Royal Proclamation. A comparison of the actors mentioned in the early treaties (below)

2. The texts of the Upper Canada treaties used in this paper are found in Canada 1891, Indian treaties and surrenders from 1680 to 1890, except for the text of the Huron Treaty 1764, which was transcribed from NAC R216-284-7-E, Six Nations Supenntendency records. The US treaties are found in Kappler 1904, Indian affairs: Laws and treaties, vol. II (Treaties). 378 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

illustrates a significant difference between those peace treaties (Huron and Greenville) and those in the Upper Canada land cession (McKee). In the Huron Treaty, 12 different parties were mentioned, in the Greenville Treaty there were 17 categories of people noted, but in the McKee Treaty only four groups/people were mentioned (and one of those, the "Messsas- sagey [sic] Indians" were referred to only in relation to a boundary line of a prior purchase).

Huron Treaty, 1764

1. Sir William Johnson Baronet: "his Majestys Sole agent, and Superintendent of the Indian Affairs" 2. Colonel of the Six United Nations of Indians their Allies and Dependants 3. English 4. His Britannic Majesty 5. English "who may be Prisoners, or Deserters" 6. Negroes 7. Pani 8. "Other Slaves amongst the Hurons, who are British Property" 9. Commandant of the Detroit 10. His Majesty's Enemies 11. White men 12. French

McKee Treaty, 1790

1. The Village and War Chiefs of the Ot-ta-wa, Chip-pa-wa, Pot-to-wa-to-my and Hu-ron, Indians Nations of Detroit: "our and their Heirs, Executors and administrators" 2. Alexander McKee Esquire, Deputy Agent of Indian Affairs 3. His Majesty George the Third, King of Great Britain, France and Ireland 4. Messsesagey [sic] Indians

Greenville Treaty, 1795

1. Indian Tribes [12 named]: "their Sachems, (wise) chiefs, and warriors" 2. The United States of America 3. Major-general Wayne BRITISH AND US TREATIES IN THE OLD NORTHWEST 379

4. President 5. Senate of the US 6. Prisoners, hostages 7. The people of the US 8. King of Great Britain 9. Citizens of the US 10. General Clark and his warriors 11. White persons 12. French people and "white settlers among them" 13. Settlers (equivalent to squatters) 14. Traders, their agents and servants 15. Superintendent or deputies 16. Hostile tribes 17. General or officer commanding US troops

A further difference was found in the descriptions of the land pre­ sented in the McKee and Greenville treaties. In the McKee Treaty, the lands described are contiguous, bounded by waterways, set in miles or arpents, and refer to previously purchased lands. In the Greenville Treaty, the descriptions of land began with a gen­ eral boundary line between US and Indian lands, with some exceptions to allow for trading and military efforts. The areas were located and described in reference to waterways. The Greenville Treaty included islands and the water between them and the mainland, something not found in the three Upper Canada treaties examined here. The description of specifically reserved areas differs markedly from the Upper Canada treaties. In the Greenville Treaty, these areas were defined by the acreage that they would cover, but the boundaries were to be surveyed at some future date. The following are the first four of 16 special cessions to the US that lay inside the : ... the said Indian tribes do also cede to the United States the follow­ ing pieces of land; to-wit. 1. One piece of land six miles square at or near Loromie's store before men­ tioned. 2. One piece two miles square at the head of the navigable water or landing on the St. Mary's river, near Girty's town. 380 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

3. One piece six miles square at the head of the navigable water of the Au-Glaize river. 4. One piece six miles square at the continence of the Au-Glaize and Miami rivers, where Fort Defiance now stands. Like the McKee Treaty, which mentioned both an earlier reserve (the "Indian Officer Tract") and a purchase from the Mississauga, the Green­ ville Treaty also had earlier negotiations with First Nations incorporated into the treaty as found in the twelfth cession: 12. The post of Detroit and all the land to the north, the west and the south of it, of which the Indian title has been extinguished by gifts or grants to the French or English governments; and so much more land to be annexed to the district of Detroit as shall be comprehended between the river Rosine on the south, lake St. Clair on the north, and a line, the general course whereof shall be six miles distant from the west end of lake Erie, and Detroit river.

THE REGIONAL TREATIES: SAGINAW TREATY, 1819, AND TREATY 29, 1827 Both regional treaties were concluded after the and focussed on the cession of land for settlement. Again, the style differs when one compares the articles/sections. Like the earlier McKee Treaty, Treaty 29 (between the Crown and "Indians of the Chippewa Nation" in Upper Can­ ada) was a land cession couched in the language of a contract. The Sagi­ naw Treaty (between Michigan and the "Chippewa") retained a discursive quality similar to Greenville, where not only land was ceded, but specific arrangements for individuals and community improvements such as right of ways for roads were included.

Saginaw Treaty, 1819 1. cede land 2. set up reserves 3. set price and an annuity 4. confirm hunting & sugaring rights on US land 5. pay for improvements 6. allow for roads 7. provide a blacksmith and furnish farming support BRITISH AND US TREATIES IN THE OLD NORTHWEST 381

Treaty 29, 1827 1. indenture/surrender of land for "cultivation and settlement" 2. set boundaries 3. set up reserves 4. set up an annuity with provisions for decreasing it should numbers on reserves decrease

Articles in the US treaties: Greenville Treaty, 1795, and Saginaw Treaty, 1819 The Greenville Treaty established peace, set boundaries between Indian Territories and the US, ceded land and set up trading and other relation­ ships between non-Natives and the First Nations in a large area that cov­ ered most of Michigan and some of Ohio. The Saginaw Treaty of 1819 was much more limited in scope. Seven of the ten Saginaw Treaty articles covered issues that were addressed in only two of the Greenville Treaty articles (see below). The "peace" of the Greenville Treaty was no longer an issue by the time of the Saginaw Treaty.

Greenville Treaty, 1795 Saginaw Treaty, 1819

1. establish peace [none] 2. restore war prisoners [none] 3. cede land, make reserves 1. cede specified lands 2. reserve land 3. specific tracts reserved for specific people 4. relinquish claims to Indian lands, 4. annuity set an annuity, or goods/services 6. pay for land improvements on related to farming ceded land 8. provide and support a blacksmith and other farming aids 7. US retains right to make roads on reserved land 5. sale of Indian land only to US [none] 6. punishing white squatters [none] 382 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

7 establish hunting rights on ceded 5. re-established the (Greenville) . d right to hunt and to sugar on Ub lands 8. licensing trade with tribes [none] 9. dealing with hostilities on either [none] side 10 void other treaties prior to 1783 9. ratification by the President of the United States

Sections in the Upper Canada treaties: McKee Treaty, 1790 and Treaty 29, 1827 The sections of the McKee Treaty and Treaty 29 roughly match, with the first three sections of Treaty 29 equivalent in scope to the first three of the McKee Treaty as both granted/surrendered land, set boundaries and estab­ lished reserves:

McKee Treaty, 1790 1. set payment; grant land; define boundaries of grant 2. define and reserve the Huron Reserve 3. define and reserve the Huron Church Reserve. 4. specify rights to land granted to Crown 5. make the deed irrevocable

Treaty 29, 1827 1. indenture/surrender of land for "cultivation and settlement" 2. set boundaries 3. set up reserves 4. set up an annuity with provisions for decreasing it should numbers on reserves decrease The most significant difference between the McKee Treaty and Treaty 29 was the means of payment. In the 1790 treaty, the Crown offered a one-time payment for the lands but by Treaty 29, the preferred method of payment was to offer an annuity. BRITISH AND US TREATIES IN THE OLD NORTHWEST 383

McKee Treaty, 1790

... for and in Consideration of the Sum of Twelve Hundred Pounds Currency of the Province of Quebec, at Five Shillings per Spanish Dollar for valuable Wares and Merchandise ...

Treaty 29, 1827

... there shall be paid yearly and every year in perpetuity to the said Indians of the Chippewa Nation now inhabiting the said tract, and to their posterity, the sum of one thousand and one hundred pounds of lawful money of Upper Canada in goods at the prices usually paid for the time being for such goods in the city of Montreal, in the Province of Lower Canada; The funding in Treaty 29 was further complicated by a formula that would reduce individual payments if the population of the Chippewa Nation dropped by one half or more. Alternatively, annuities without these limitations had been set in the Greenville Treaty and were combined with a payment for any past, unpaid annuities in the Saginaw Treaty in Article 4, which states:

In consideration of the cession aforesaid, the United States agree to pay to the Chippewa nation of Indians, annually, for ever, the sum of one thousand dollars in silver; and do also agree that all annuities due by any former treaty to the said tribe, shall be hereafter paid in silver. The apparent frugality of Treaty 29 is not a mistake; in fact the amount offered in earlier drafts was significantly higher (Telford 1998).

Description of place in the regional treaties

Treaty 29 described the land as a surveyor would, by compass points, chains or links tied into previous claims that had been surveyed or the boundaries of waterways. The Saginaw Treaty defined the land in miles and points of the compass. The contrast in specificity runs across the descriptions of reserves and ceded territory as is seen in the following def­ initions ofreserves:

Saginaw Treaty, 1819 Front [sic] the cession aforesaid the following tracts of land shall be reserved, for the use of the Chippewa nation of Indians ... 384 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

Treaty 29, 1827 And whereas, the tract of land intended and agreed to be surrendered as aforesaid has been since accurately surveyed, so that the same, as well as certain small reservations expressed to be made by the said Indians from and out of the said tract for the use of themselves and their posterity, can now be certainly defined ... Unlike the Upper Canada treaties, the Saginaw Treaty included "reserves" for specific individuals: ARTICLE 3. There shall be reserved, for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians by descent, the following tracts of land ... [emphasis added] These specified plots were exactly ten per cent of the total acreage reserved. The descriptions of these areas were precise in terms of acreage, but somewhat more general as to location, as shown in the following examples: For the use of John Riley, the son of Menawcumegoqua, a Chippewa woman, six hundred and forty acres of land, beginning at the head of the first marsh above the mouth of the Saginaw river,o n the east side thereof. ... For the use of Kawkawiskou, or the Crow, a Chippewa chief, six hundred and forty acres of land, on the east side of the Saginaw river, at a place called Menitegow, and to include, in the said six hundred and forty acres, the island opposite to the said place.

Agency in the treaties

As we compare the manifestation of agency expressed in the four treaties, we find an interesting reversal of position in the earlier and later Upper Canada and the US treaties. In the earlier McKee Treaty, the proposed agents were the "Chiefs for ourselves and the whole of our said Nations" but in the later Treaty 29, it is the Crown, wishing to "appropriat[e] to the purposes of cultivation and settlement a tract of land," who initiated the Council (treaty) process which was agentlessly "proposed to the Chiefs and Principal men." In the US, the Greenville Treaty was between two parties (General Wayne for the US and the "said Tribes of Indians") but in the later Saginaw Treaty, the Chippewa Nation of Indians were, as in the McKee Treaty, presented as the primary actors.3

3. The subjects have been underlined and their actions italicized. BRITISH AND US TREATIES IN THE OLD NORTHWEST 385

Upper Canada

McKee Treaty, 1790 And we the said Chiefs for ourselves and the whole of our said Nations, our and their Heirs, Executors and administrators do cove­ nant, promise and grant to and with His said Majesty George the Third... Treaty 29, 1827 Whereas, His Majesty being desirous of appropriating to the purposes of cultivation and settlement a tract of land hereinafter particularly described, ..., it was proposed to the Chiefs and Principal Men of the said Indians at a Council assembled for that purpose at Amherstburg, ..., that they should surrender the said tract of land ...

United States

Greenville Treaty, 1795 To put an end to a destructive war, to settle all controversies, and to restore harmony and a friendly intercourse between the said United States, and Indian tribes; , major-general, command­ ing the army of the United States, and sole commissioner for the good purposes above-mentioned, and the said tribes of Indians, by their Sachems, chiefs, and warriors, met together at Greenville, the head quarters of the said army, have agreed on the following articles ... Saginaw Treaty, 1819 The Chippewa nation of Indians, in consideration of the stipulations herein made on the part of the United States, do hereby, forever, cede to the United States the land comprehended within the following lines and boundaries ..."

THE SURRENDERS: TREATY OF DETROIT, 1837, AND SURRENDER NO. 5VA, 1843 The final pair of treaties discussed here were made following the efforts of President Jackson and Sir Francis Bond Head, respectively, to remove members of the First Nations from immediate contact with settler society. Under Jackson, the removals were to the west; for Bond Head the removal was to be to Manitoulin Island but in Upper Canada most of the communities refused to comply. The Upper Canadian and US treaties are well matched in purpose: Treaty 5VA, 1843, surrendered the entire "Lower Reserve" of Treaty 29, 386 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL and the Treaty of Detroit, 1837, surrendered all the reserved lands in Arti­ cle 2 of the Saginaw Treaty, 1819, less those acres reserved for individu­ als. The texts of the two surrenders differ predictably from each other. Surrender 5314 is comprised of two sentences: the firsti s 234 words long and the second is 34 words, confirming that the "Indians" witnessed the surrender. The Detroit surrender followed the article structure of the ear­ lier US treaties and continued to cover a relatively wide range of topics.

Articles of the Treaty of Detroit, 1837 1. tracts to be ceded 2. right to live on two tracts for 5 years 3. net proceeds of land sales to Indians, less expenses 4. money to be taken fromth e sale of lands for special payments, payment of debts accrued since Treaty of Ghent, support of schools, compensation for American citizens, services of physician, purchase of tobacco 5. US will advance amounts for paying items in art. 4 6. removal clause; arrangements for finding new location 7. Smith's shop to continue per 1819 treaty, not to exceed $ 2,000 annually 8. $ 1,000 for cession of two reservations by the Potawatomies of St. Joseph's (1827) 9. annuities to continue as before 10. if lands not sold by September 1837, US to form a trust to be repaid with interest 11. expenses of forming this treaty to be paid by US, excepting for "one moiety thereof to be charged to the Indian fund" for article 3

Sections of Treaty 53'A, 1843 1. surrender of Lower Reserve "from and at such price or prices as to Her said Majesty, Her heirs and successors, shall seem best" The description of the land was terse in both the US and Upper Can­ ada surrenders, following municipal and natural boundaries. In both cases, the use of municipal boundaries established by settlers indexes their ascendency in the configuration of the landscape:

Treaty of Detroit, 1837 ... the following tracts of land, lying within the boundaries of Michi­ gan; namely; One tract of eight thousand acres, on the riverA u Sable. BRITISH AND US TREATIES IN THE OLD NORTHWEST 387

One tract of two thousand acres, on the Misho-wusk or Rifle river. One tract of six thousand acres, on the north side of the river Kawkawling Treaty 53'A, 1843 ... that certain tract of land situate in the Western District of this Prov­ ince, in the Township of Moore, being one mile in extent along the edge of the riveran d extending four miles back, and being bounded on the south side by the town line between Sombra and Moore, known as the Lower , and containing two thousand six hundred and seventy five acres ...

THE LANGUAGE OF THE TREATIES

The average length of sentences in the treaties from the United States and Upper Canada differs markedly:4

UPPER CANADA UNITED STATES

McKee Treaty, 823 words 2857 words Greenville 1790 138 av. w/s 36 av. w/s Treaty, 1795 Treaty 29 3042 words 1049 words Saginaw Treaty, 1827 217 av. w/s 26 av. w/s 1819 Treaty 53'A 268 words 1918 words Detroit Treaty, 1843 134 av. w/s 28 av. w/s 1837 (word count and average words per sentence)

The longest sentences in the Upper Canada treaties were descriptions of boundaries, which is consistent with the practice of surveying the bound­ aries prior to the finalization of the cessions and reserves.5

Deeds

In our analysis of the Upper Canada treaties, the legal character of the texts led us to examine land deeds in the period to determine whether the

4. The Huron Treaty, 1764, consisted of 593 words with the average number of words per sentence at 49. In terms of its sentence length, it fell on the US end of the spectrum with its average of 30 words per sentence rather than on the Upper Canada end with its average of 163 words per sentence. 5. The record of Canadian Indian treaties and surrenders (Canada 1891) includes sur­ vey maps as part of each treaty, a practice not followed in the US treaty process, where surveys followed the ratification of the treaties. 388 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

language of deeds might be similar to the treaties. In fact, early deeds both in the US and Upper Canada exhibit striking parallels. For example, the initial introductions of the Talbot deed of 1804, which comprised the land at the east end of the McKee cessions, and the McKee Treaty of 1790 read as follows:6

McKee Treaty, 1790 Talbot Deed, 1804

KNOW ALL MEN BY THESE PRESENTS.KNOW YE. that We of Our special that we the principal Village and War grace, certain knowledge, and mere Chiefs of the Ot-ta-wa ... have by and motion have Given and Granted, and by with the consent of the whole of our these Presents do GIVE and GRANT said Nations, given, granted, enfeoffed,unt o alienated, and confirmed and by these Thomas Talbot of the Township of presents do give, grant, enfeoff, alien Dunwich, in the County of Middlesex, in and confirm unto His Majesty George the District of London Esquire the Third ... heirs and assigns for ever; a certain Tract of land beginning at the All that parcel or tract of Land situate in mouth of Catfish Creek, commonly the Township of Dunwich, called Riviere au Chaudiere on the in the County ofMiddlesex, in the north side of Lake Erie being the Wes­ District of London. In our said Province, containing by tern extremity of a Tract purchased by admeasurement His said Majesty from the Messsesagey One Thousand Seven Hundred and Fifty [sic] Indians in the year One Thousand acres Seven Hundred and Eighty Four and be the same more of less being from thence running Westward along Lots Number Twenty two, Twenty three. the border of Lake Erie and up the Twenty four in the Nineth [sic] Streight to the mouth of a river known Concession, the broken Lot Number five by the name Channail Ecarte to the first and the Lots Number Twenty one, fork on the south side, then a due East Twenty two, Twenty three, - Twenty line untill it intersects the Riviere a la four and Lot Lettered A in the Tenth Concession of the said Township of Tranche, and up the said Riviere-a-la- Dunwich Tranche to the North west comer of the together with all the woods and waters said cession granted to His Majesty in thereon lying, and being under the the year One Thousand Seven Hundred reservations, limitations, and con­ and Eighty Four, then following the ditions hereinafter expressed : which Western Boundary of said Tract being a said due South direction, untill it strikes the One Thousand Seven Hundred and fifty mouth of said Catfish Creek or Acres of Land (?here) otherwise Riviere au Chaudiere being butted, and bounded, or may be other­ the first offset... wise known as follows : that is to say Commencing in front of the said Concession ... BRITISH AND US TREATIES IN THE OLD NORTHWEST 389

The language of an indenture signed 20 July 1780 in the County of Powhatan, Virginia, is in some respects even closer to that of the McKee Treaty. In the following examples it appears that a very similar template was used for both documents:

McKee Treaty, 1790 Deed, Powhatan County, 1780 ... we the principal Village and War... Witnessefh that the said Samuel Chiefs of the Ot-ta-wa ... for and in Hyde Saunders for and in consideration Consideration of the Sum of Twelve of the sum of one hundred and fifty Hundred Pounds Currency of the Pounds Current Money of Virginia to Province of Quebec, at Five Shillings him in Hand paid by the said James per Spanish Dollar for valuable Wares Bagby the Receipt whereof he doth and Merchandise to us delivered by the hereby acknowledge. hands of Alexander McKee Esquire Deputy Agent of Indian Affairs the receipt whereof we do hereby acknowledge. have ... given, granted, enfeoffed. He the said Samuel Hyde Saunders alienated, and confirmed and by these have granted bargained sold aliened presents do give, grant, enfeoff, alien Enfeoffed & confirmed unto the said and confirm unto His Majesty George James Bagby his Heirs and Assigns. the Third ... a certain Tract of land forever one Certain Tract or Parcel of beginning at the mouth of Catfish Land ... Creek ...

... To have and to hold the said Lands ... To have and to hold the said Tract or and Premises hereby given and granted. Parcel of Land and Premises with the mentioned, or intended to be given and Appurtenances unto the said James granted to his said Majesty George the Bagby his Heirs and Assigns forever To Third. His Heirs and Successors for the the only proper use and behoof of him only proper use and behoof of his said the said James Bagby his Heirs and Majesty George the Third, his Heirs Assigns forever. (Deed book 1, Powha­ and Successors for ever. tan County, Virginia, p. 150)

The language of the Upper Canada treaties is the language of deeds and contracts used in both British and US land sales. These treaties, or deeds, followed a British template for land sales that was maintained in both countries even after the American Revolution.

6. We transcribed the Talbot deed, located in the J.J. Talman Regional History Room, University of Western Ontario, using italic type for sections that were obviously handwrit­ ten. 390 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

THE ORIENTATION OF THE TREATIES As deeds of sale, the "treaties" under the British Crown were focused on the precise definition and ownership of a piece of land. The text of the British treaties recorded precisely those elements: the description of the land, any portions reserved from the tract in question, and the value and form of compensation given or promised for title to that land. The Coun­ cils that preceded the signing of the deed of sale dealt with other concerns raised by the First Nations involved, along with various forms of commit­ ments or deferrals by the agents representing the Crown. Such commit­ ments were not found in the text of the deeds of Upper Canada. Adhering to the Royal Proclamation of 1763, (non-Native) settlement could not proceed until First Nations sold their lands to the Crown. The documents were designed to meet that standard. To determine rights and status in these treaties, one needs to examine the Councils leading up to the sales that were recorded as "treaties." The US treaties, on the other hand, were not burdened by the legal imperative of the Royal Proclamation; they were broader-ranging and included facets of community and individual needs. In these treaties, land was ceded, individuals were located, settlers and the military obtained access to strategic locations and the First Nations retained access to ceded land for hunting and sugaring. There was some reciprocity in the control of squatters. These documents represented a treaty between two commu­ nities, although the power differential between the two changed dramati­ cally between 1795, the date of the Greenville Treaty, and 1837, the date of the Detroit surrender. That shift in power between First Nations and settlers is also found in the financial settlements offered by the Crown for First Nations lands. From a one-time payment, the British policy ultimately changed to an annuity designed to decrease over time, and finallyt o the granting of dis­ cretion to the Crown to determine, at their own pleasure, an unspecified "reasonable sum." The attention to community needs, such as the Crown's protection of the First Nations, its meeting their needs in order to maintain the loyalty of First Nations, and so on, fell under other sections of the Royal Proclamation. A striking similarity, finally, in the British and US agreements is the evolution of the policy underlying the governments' prescriptions for First Nations. From the earlier need for a peace agreement prior to the BRITISH AND US TREATIES IN THE OLD NORTHWEST 391 cession of land, based on military threat, to civilization policies and then to removal, the two countries shared a common agenda. However, the rel­ ative success in removals reflects an interesting contrast in governmental visions. The US saw the lands in the west as a solution to maintaining "Indian territory." The British did not, but suggested Manitoulin Island as a possibility. The US "west" was viewed as expansive, a view that was shared by the westward orientation of the settlers. Manitoulin Island was located within the , appropriate to the domain of Great Lakes First Nations, but the location was chosen without serious reflec­ tion as to the adequacy of its size or the resources it offered.

CONCLUSION The British colonial treaties are deeds of sale. They represent a contract which had to be honoured to validate the sale. Issues beyond land, how­ ever, fall under the fiduciary obligation of the Crown as boldly stated in the Royal Proclamation and the Instructions under it. Those obligations were not linked to the land deals but to the integrity of the Crown and its commitments to the First Nations, which provided a necessary prior con­ text for the land cessions to occur. Without such commitments, there would have been sustained violence in the early days of settlement. In the US, the treaties contained myriad agreements that were subse­ quently eroded and supplanted by others in a new context. The US treaties as contracts had more substance and provide a base for the assessment of current First Nations rights and status.

REFERENCES Canada. 1891. Indian treaties and surrenders, from 1680 to 1890, vol. 1. Ottawa: Queen's Printer. Kappler, Charles J., ed. 1904. Indian affairs: Laws and treaties, vol. II (Treaties). Wash­ ington: Government Printing Office. National Archives of Canada, Ottawa (NAC). R216-284-7-E, Six Nations Superintendency records. Prucha, Francis Paul. 1994. American Indian treaties: The history of a political anomaly. Berkeley: University of California Press. St. Germain, Jill. 2001. Indian treaty-making policy in the United States and Canada, 1867-1877. Toronto: University of Toronto Press. Shortt, Adam, & Arthur G. Doughty. 1907. Canadian Archives documents relating to the constitutional history of Canada 1759-1791. Ottawa: S.E. Dawson. 392 LISA PHILIPS VALENTINE & ALLAN K. MCDOUGALL

Sullivan, James. 1921. The papers of Sir William Johnson, vol. 1. Albany: The University of the State of New York. Surtees, Robert J. 1988. Canadian Indian treaties. Handbook of North American Indians, v. 4: History of Indian-White Relations, ed. Wilcomb E. Washburn, pp. 202-210. Washington: Smithsonian Institution. J.J. Talman Regional History Room, University of Western Ontario, London. Talbot deed. 1804. Telford, Rhonda. 1998. How the West was won: Land transactions between the Anishnabe, the Huron and the Crown in southwestern Ontario. Papers of the 29th Algonquian Conference, ed. by David H. Pentland, pp. 352-367. Winnipeg: Univer­ sity of Manitoba. Virginia State Library Archives, Richmond. Deed book 1, Powhatan County, Virginia.