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 United States and British treaties with Algonquian peoples of the Old Northwest (in areas currently located within the boundaries of Ohio, 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 free trade 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 American revolution 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 five of 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.