The climax of McGillivray’s diplomatic and commercial maneuvering in the immediate aftermath of the Paris negotiations was the treaty he signed with the Spanish at Pensacola on June 1, 1784. The Creek chief initiated the agreement with a forceful letter to Arturo O’Neil, the new governor of West Florida (based in Pensacola), in which he rejected the Paris agreements. He had just received a copy of the final text. He declared, “Britain . . . has no right to transfer us with their former possessions to any power.” He went on to observe that “as a free Nation [we] have a right to choose our protector.” McGillivray warned O’Neil that the Georgians were pressing against the borders of Upper Creek territory and that they would soon threaten Florida itself. An agreement with his tribe, together with the appointment of the Creek leader as Indian agent for “His Most Catholic Majesty,” would “gain and secure a powerful barrier in these parts against the ambitious and encroaching Americans.” O’Neil quickly accepted McGillivray’s offer and invited him to come to Pensacola to sign a formal agreement.47
In late May McGillivray and the other principal chiefs of the Creeks traveled to Pensacola, where they celebrated their new alliance in the company of the Spanish governor of Louisiana, Estevan Miró, and Arturo O’Neil. The agreement did not immediately grant Panton and Leslie the right to trade at Pensacola (that would come later), but it did promise “permanent and unalterable commerce” with the Creeks and guaranteed the tribe’s right of ownership in all their lands that lay within Spain’s generous definition of Florida’s borders. Finally, “to prove how different his way of thinking is from that of his Brittanick Majesty,” the Spanish crown promised that if it were ever to lose its North American colony, it would grant its Indian allies other lands, “equivalent[,] . . . where they may establish themselves. . . .” A letter from Miró dated June 7 appointed McGillivray “commissary of the Creek nation” and granted him a monthly salary.48
The Paris treaty had left the Indian lands in the western two-thirds of the new United States an unorganized territory under the jurisdiction of a group of former English colonists whose headquarters lay hundreds of miles away in Philadelphia. In this uncertain setting, English, French, and Spanish officials could imagine countless scenarios for the future, scenarios that might possibly have restored some of their former North American empires and extended diplomatic recognition to indigenous communities. The Spanish, for example, could dream of a chain of North American provinces stretching from St. Augustine to San Diego. This domain could have been buttressed with alliances and trade agreements forged with men like McGillivray and his counterparts along the Mississippi and in the Southwest. These agreements in turn might have formed webs of protection for Spanish colonial agents and endorsement for the authority of their king. Such a network would have been perfectly consistent with the diplomatic practices followed by European powers over the previous two centuries.
The English harbored similar ambitions and seemed increasingly determined to retain their trading posts in the Great Lakes. They could imagine an inland commercial empire stretching west from the St. Lawrence and south from Hudson Bay to Detroit, Green Bay, and Lake Michigan. Furs, foodstuffs, and manufactured goods would flow back and forth through licensed centers scattered across the continental interior. French- and English-speaking settlements in the East would prosper under a symbiotic relationship in which their agricultural surpluses and commercial connections would facilitate the work of Native groups engaged in hunting, processing, and transportation.
While the French lacked a mainland base in North America, they retained rich Caribbean colonies and maintained the hope that they could serve as diplomatic arbiters between the major North American powers. This role would be buttressed by one of the legacies of France’s former presence: a network of French-speaking traders and Native leaders who might yet implement Rayneval’s and Aranda’s notion that the continent’s interior could be organized around a series of autonomous Indian protectorates.
It was possible in 1783 that such imperial dreams, fueled by international rivalries and encouraged by inventive Native leaders like Joseph Brant and Alexander McGillivray, might have created a world where Indian communities could have regained recognition from European nations and forced a new relationship with the United States. If the boundaries and spheres of influence that existed in Paris had remained in place, a new equilibrium might well have emerged, protecting the ties that had been the basis of diplomatic and military stability on the continent during the previous two centuries. This was not to be.
The Paris agreements were signed on the eve of dramatic change in Europe and the Americas. Over the next twenty-five years, pressure on Indian landholding from settlers moving west into Kentucky, Georgia, and Ohio grew exponentially, triggering multiple confrontations with Native leaders and fueling the ambitions of countless local politicians.49 At the same time, new states dominated by settlers began to form in Canada and Latin America, exerting similar pressures on Native communities living on the northern and southern borders of the United States. And in Europe a violent storm of revolution, war, and economic upheaval transformed the leadership of the major powers, separating them further from the eighteenth-century diplomatic world that had produced Brant, McGillivray, Aranda, and Rayneval. Placed in this context, the betrayal of England’s Indian allies in 1783 was far more than a diplomatic rift; it heralded the emergence of an entirely new political landscape in North America, a landscape that was to evolve beyond the control of England, France, and Spain and eventually eradicate the diplomatic customs of the colonial era.
Frederick Haldimand, the governor of Quebec, remained distraught over his government’s abandonment of Brant’s Iroquois kinsmen and its other Native allies. He feared that in the future Indian people would find it impossible to win justice from the government of the United States. As he prepared to return to England in 1784, Haldimand worried over the Indians’ future. In a letter to a colleague he grimly recalled that the chiefs had told him that the British “could cross the sea where we had other lands but that they must die on theirs rather than give it up. . . .”50 The chiefs, he explained, believed that there would be no choices other than death or surrender. In the years ahead, their successors would struggle to find a path somewhere between those two tragic options.
CHAPTER TWO
THE FIRST INDIAN LAWYER
James McDonald, Choctaw
During the first years of American independence the dark choice tribal leaders had imagined before them—surrender or death—must have seemed somewhat overblown. Despite the ambitious designs of its ministers in Paris, the United States was clearly incapable of extending its authority into the continent’s interior. No amount of rhetoric could sweep away the fact that Indian warriors, now equipped with English and Spanish guns, operated freely across their homelands, showing little fear of the patriots’ impoverished government in Philadelphia. Tribal life in the Great Lakes region and the Ohio Valley continued much as it had during the years before the war.
In the decade following the Paris negotiations, the reality of Indian power would have been obvious to anyone who crossed the Appalachians. In 1790 and 1791 Native forces repulsed two American armies that ventured into northern Ohio from bases near modern Cincinnati. In these encounters, a coalition force comprised largely of tribes who had fought in the Revolution under Joseph Brant (Shawnees, Delawares, Ojibwes, Miamis, and Kickapoos) killed nearly one thousand American soldiers and militiamen and chased the survivors out of their territory. The Indians effectively destroyed the young nation’s military—twice.
President George Washington acknowledged the reality of Native power south of the Ohio when he invited the Creek leader (and Spanish ally) Alexander McGillivray to the nation’s capital to sign a formal peace treaty. During the chief’s 1790 visit, the president offered him an agreement sweetened with a brigadier’s commission and a secret clause that granted him permission to import trade good
s from his business partners in Spanish Pensacola into the United States without paying import fees.1
Tribal leaders like McGillivray could reasonably imagine that the long traditions of diplomacy and mutual accommodation that had guided relations with Europeans during the seventeenth and eighteenth centuries would continue despite the Americans’ territorial ambitions.2 They could hope that the generation of tribal leaders that succeeded McGillivray would grow up in a world where Native peoples and U.S. officials negotiated their differences in treaty councils and lived beside each other as neighbors and trading partners. Perhaps this rising generation of tribal leaders could find common ground with the new nation, fulfilling Thomas Jefferson’s often stated hope that Indians and whites would eventually “blend together . . . intermix, and become one people.”3
But rather than launch an era of mutual respect and ultimate amalgamation, the first decades of the nineteenth century were punctuated by violence, adversity, and the gradual separation of American and Indian interests. Tribal leaders had little opportunity to negotiate as equals with American politicians or to ally themselves with European diplomats. Instead, they faced repeated confrontations with land-hungry settlers and aggressive state governments that cared little for their rights or their homelands. By 1820 it was clear that the United States was prepared to compel eastern tribes to accept national expansion deep into the North American interior. Tribal leaders who came of age during at this historical moment were forced to give up the diplomatic approach of the last century and confront the Americans in the arena of national politics.
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JAMES MCDONALD WAS an extraordinary representative of this new generation of leaders. Like Alexander McGillivray, he was the son of a European father and a Native mother. McDonald was a Choctaw, born in 1801 in his tribe’s homeland in what is now Mississippi. His father is lost to the historical record, but his mother is not. She was a resourceful trader and landowner who was determined to promote her son as a bilingual tribal leader. Just as McGillivray’s father sent him to Charleston to be taught English and business skills, so McDonald’s mother enrolled her son in a Quaker-run mission school near their home. In 1813 she took the remarkable step of sending the twelve-year-old to Baltimore, Maryland, where the Yearly Meeting of Friends took charge of his upbringing. Within a decade he had been educated in the classics and was reading law in the office of John McLean, one of the most prominent attorneys of his day.4 Equally striking, McDonald’s return to Mississippi in 1823 after a decade’s absence brought him to the center of a confrontation with white settlers who were demanding that the Choctaws and their neighbors abandon their homes and move beyond the settled borders of the United States. “The clouds appear to be gathering from every quarter and ready to burst over every fragment of the Indian race,” McDonald wrote in 1826. “I see applications to congress from half the states in the union for the extinguishment of Indian titles to land—and to my mind it looks like a bitter and endless persecution.”5
McDonald believed that it would be futile to use force to reverse this tide of “persecution.” As a consequence, he became one of the first Native leaders to devise a political response to the new American national reality. He believed that political negotiations between the United States and educated Native leaders could establish the basis for long-term survival for groups like the Choctaws. Just as McGillivray, Brant, and other leaders of the Revolutionary Era hoped to negotiate sustainable diplomatic agreements with foreign powers, McDonald and many others of his generation expected they could forge with federal officials political agreements that would protect their homes and tribal institutions. Among those who shared McDonald’s general outlook were John Ross, a trader’s son who had grown up in the Cherokee homeland in northwestern Georgia; George Colbert, a Chickasaw planter and ferry owner in Mississippi; and Peter Pitchlynn, also the son of a Choctaw woman and a Scots trader. Pitchlynn was a childhood friend of McDonald’s who remained a prominent planter and tribal leader through the end of the Civil War. Similar leaders emerged among tribes in the northeast, Ohio, and the Great Lakes.
James McDonald’s life is particularly instructive because he was the first of these individuals to be trained in the American legal system. He also went on to act as an adviser to a group of traditional Choctaw chiefs who negotiated with American leaders in Washington, D.C. He was therefore the first Native activist to make the case for Indian “rights” directly to American political leaders and to negotiate for a recognition of those rights in a formal agreement. In his career, McDonald pointed out the contradiction between the Americans’ public allegiance to the ideals of democracy and constitutionalism and their participation in extralegal assaults on the dignity and humanity of the continent’s first people. Like his predecessors in the eighteenth century, McDonald sought recognition by the outside powers that intruded on the Choctaw homeland. Rather than defend the Choctaws as diplomatic actors on the international stage, however he made the case for a tribal presence, and tribal rights, within the boundaries and institutions of the United States.
With fifteen thousand members at the end of the eighteenth century, the Choctaws were among the largest southeastern tribes. Nevertheless, they were the first to abandon their Mississippi homeland in exchange for new lands in Indian Territory, the tribal refuge west of the Mississippi that eventually became the state of Oklahoma.6 Surrounded and besieged in the East by aggressive frontiersmen, land speculators, and politicians, the Choctaws chose to leave the mounting chaos around them and move to a protected enclave federal officials had promised would become their permanent home. McDonald’s tribe lacked the time or the allies to resist American expansionism. As a consequence, they were the first major group to see older, negotiated agreements replaced by new, coercive treaties. As McDonald and the Choctaws confronted the American officials who urged them to move west, they found they needed a new way of dealing with the United States.
James McDonald and his Choctaw kinsmen came to see that their tribe and the United States were no longer allies; they had instead become legal adversaries. In this altered atmosphere the tribe recognized that it needed something more to protect itself than military power or the blessing of its spiritual helpers. The Choctaws became convinced during the 1820s that they needed an advocate who could counter the Americans’ logic, stall their ambitions, and blunt their threats. They no longer needed a charismatic chief; they needed a lawyer. In the decades to follow, other tribes reached the same conclusion.
For a brief moment in 1824 James McDonald became the Choctaws’ lawyer. His short career marks the birth of a new approach to federal power and, by extension, the beginning of an American Indian political activism that was to inspire tribal leaders across the continent. Chief John Ross of the Cherokees rallied his community behind him and traveled repeatedly to Washington, D.C., to oppose the removal of his tribe from Georgia. In New England, William Apess, a Pequot who became a Methodist preacher, spoke out passionately on behalf of the rights of his and neighboring tribes and in opposition to the white settlers who surrounded and engulfed them. And Waubunsee, a Potawatomi chief who negotiated a series of treaties aimed at preserving his tribe’s independence in the Midwest, sought to enforce those agreements on American officials even as his community was pushed west from Illinois into Kansas. Many followed the path that McDonald forged, but none traveled it as early or as eloquently as the Choctaw lawyer.
THE POSTWAR WORLD OF TREATIES
The conflicts McDonald would face in the 1820s were difficult to imagine in the years immediately following the Revolution. The Paris treaty had angered tribal leaders, but it soon became apparent that the new American government had little power in the North American interior and would have no choice but to continue the traditions of diplomacy and mutual accommodation that had marked relations with the Indians before the war. The United States was particularly accommodating in the southeastern interior, where Indians still outnumbere
d settlers and Spain and Great Britain occupied strategic outposts just across the national borders. In 1801, when James McDonald was born in Mississippi, the United States still treated the region’s tribes as partners whose friendship rested on agreements ratified at formal treaty councils that strongly resembled the imperial gatherings of the eighteenth century.
In the Southeast the most important of these councils took place at Hopewell, the South Carolina estate of a backcountry trader and politician named Andrew Pickens. Negotiated in the closing days of 1785, the Hopewell agreements were intended to patch up relations with tribes, like the Creeks and Choctaws, who had opposed American independence and to establish diplomatic contact with groups whose primary allegiance was to Britain and Spain. The Choctaw delegation that traveled the five hundred miles to the Hopewell treaty grounds looked forward to the negotiations. They expected the Americans to welcome them as kinsmen and to shower them with traditional signs of peace: food and clothing.7 The delegates wielded spiritual as well as temporal authority, for the tribe viewed their emissaries as powerful intermediaries who negotiated relations between their villages and the outer world of strangers, foreigners, and hostile spiritual beings, all of them with the potential to do them harm. From their perspective, they came to Hopewell prepared to restore the diplomatic world that had existed in the decades prior to the Revolution.
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