McGillivray was not the only one trying to derail the conference. Georgia feared that the federal commissioners would encroach on its state rights and might negate the cession of Creek lands it had obtained at Augusta.38 Georgia’s government did everything it could to delay, and if possible prevent, the federal commissioners’ meeting with the Indians.39 It refused to provide the required funds for the negotiation, forcing the commissioners to draw on US funds.40 State delegates circulated a rumor that the commissioners intended only to reconfirm the Augusta Treaty, which aided McGillivray’s efforts to discourage Creek attendance.41 Georgia’s commissioners—Edward Telfair, William Few, and James Jackson—protested the proposed treaty as an infringement of Georgia’s sovereignty and refused to agree on any terms except those for maintaining friendship. McGillivray said the quarreling between the two sets of commissioners made them look “Completely ridiculous, in the eyes of the Indians.”42 The federal commissioners finally decided that they “could not treat with so few of their nation, there being but two towns properly represented, instead of about one hundred,” and departed. Georgia’s commissioners remained behind and signed a treaty with the few chiefs present who claimed to speak for the whole Creek nation. The Treaty of Galphinton confirmed the treaty made at Augusta and included a further cession of lands extending from the forks of the Ocmulgee and Oconee Rivers to the source of the St. Marys River.43
The Galphinton Treaty only increased hostilities on the Creek-Georgia frontier. Hoboithle Mico later told Henry Knox that only one town—Tallassee or Great Tallassee on the eastern side of the Tallapoosa River—was properly represented at the treaty; Okfuskee farther up the Tallapoosa was partially represented, and common Indians with no authority attended from three other towns. Hoboithle Mico insisted he and the other chiefs present never consented to the land cession: “I tried to scratch & destroy the paper while the man was writing but it was prevented,” he said. He told the commissioners he had no right to cede the lands: they belonged to the whole nation, and the nation as a whole must decide. When the nation discussed the cession in a general meeting in June 1784, the thirty-five towns represented protested against it unanimously.44
McGillivray refused any responsibility for what Hoboithle Mico and Eneah Mico had done and opposed the land cessions they made.45 “Georgians are encroaching on our hunting Lands,” he wrote O’Neill in March 1786. “I have repeatedly warned them of the ill consequences of such measures, & the dangers it might bring upon them, but they do not listen to it & Still persist in their encroachments.”46 He appealed to Spanish officials for guns and ammunition to help the Creeks defend their territory.47 He traveled to New Orleans and secured renewed commitments of support from Governor Estevan Miró. Then he held a meeting at Tuckabatchee, where Creek chiefs “drew up some very spirited resolutions” demanding that Georgians withdraw “within the natural limits of the Ogeechee River” and threatening force they did not comply.48
In an attempt to avoid all-out war with the Creeks, Georgia appointed commissioners to negotiate a cession of the disputed lands along the Oconee River.49 At the Treaty of Shoulderbone Creek in November 1786, Hoboithle Mico, Eneah Mico, and their supporters once again showed up, and McGillivray as usual stayed away. Intimidated by the Georgia commissioners’ strong-arm tactics, the chiefs confirmed their previous land cessions at Augusta and Galphinton, promised satisfaction for thefts and killings committed since those treaties, and marked out the cession of an additional block of land by designating the Oconee River as the Creek-Georgia boundary line.50 In what was becoming a routine pattern, McGillivray and his followers denounced the treaty as illegitimate and condemned Hoboithle Mico and Eneah Mico as American pawns. Confident he had Spain’s support, McGillivray continued to resist Georgian encroachment and defy American threats. If resorting to war to get what could not be obtained through peace efforts was the mark of savages, he wrote, then “what savages must the Americans be, and how much undeserved applause have your Cincinnatus, your Fabius obtained.” He said that names like “man killer” or “the great destroyer” would be more appropriate.51 For the Creeks, this was more than a dispute over property: “Our lands are our life and breathe [sic]. If we part with them, we part with our blood,” declared Hallowing King of Coweta.52 The conflict with Georgia escalated. In the list of twelve “Vices of the Political System of the United States” Madison drew up in 1787, the second was state encroachments on federal authority, such as “the wars and Treaties of Georgia with the Indians.”53 In this case, the state’s actions threatened to embroil the nation in a war it could ill afford.
Spain feared the consequences of a Georgia-Creek war almost as much as Washington did, and urged McGillivray to make peace if he could. McGillivray told Governor Miró in June 1788 he did not trust the Americans, “who are a sett of crafty, cunning, republicans, who will endeavor to avail themselves of every circumstance in which I cannot speak or act with decission.”54 A year later, in June 1789, he sent warriors to Pensacola to get arms and ammunition, “as we are threatened hard by the Americans with the displeasure of their King Washington.”55 McGillivray may have been aware of the heated debate going on about whether, in a world full of monarchs, the president of the Republic should have a regal title.56
Washington meanwhile was learning all he could about the situation in Creek country. In July, Knox sent him a comprehensive report, accompanied by extensive correspondence, relating to the southern Indians. He explained the division between the Upper and Lower Creeks and noted that most Creek towns lay within the territory of the United States but that some of the southernmost towns of Lower Creeks or Seminoles were in Spanish territory, stretching toward the southern tip of Florida. He provided background on McGillivray—“his abilities and ambition appear to be great”—and reviewed the treaties at Augusta, Galphinton, and Shoulderbone, concluding that the cause of the war between Georgia and the Creeks was “an utter denial on the part of the Creeks of the validity of the three treaties.” Congress had resolved, a year before, to notify the Creeks that if they persisted in refusing to make a treaty on “reasonable terms,” the United States would send troops to protect the frontier, but Knox recommended devising other means to end the hostilities.57 To be sure, “national dignity” demanded punishing the Creeks for their “intransigence,” but, Knox informed Washington in January 1790, the armed forces of the United States consisted of one battalion of artillery, comprising 240 men, and one regiment of infantry, comprising 560 men. The army was thus “totally inadequate” for taking on the Creeks, estimated at 4,500 warriors. Knox reckoned to do so would require raising an army of 5,000 men, which would cost $1.5 million each year to maintain. In the circumstances, it seemed expedient to negotiate. Congress should authorize the president to appoint three commissioners to travel to Georgia and make a peace with the Creek nation.58 Washington believed that the crisis required immediate action and that the only way to resolve it was to have US commissioners negotiate an agreement with Georgia and the Creeks.59 By inserting the federal government into the dispute, he hoped to avoid war and sever the Creeks’ ties to Spain.
Speculators speculated on what it might mean for them. Writing from New York on August 8, 1789, Hugh Williamson relayed what inside information he could to his friend John Gray Blount, an avid speculator like the other Blount brothers, William and Thomas. Knox had communicated many papers on Indian affairs to Congress, Williamson reported, and the congressmen were busy reading them behind closed doors. He had it on good authority that Congress was likely to adopt Washington’s recommendation and appoint treaty commissioners, in which case Blount could be sure that no more lands would be bought from the Indians. The Indians would be assured that if they abided by the terms, no whites would breach the boundary lines, no land sales would be made except to the United States, and troops would be stationed on the frontier to “equally curb the White and Red Savages.” The effect would be to drive up the value of lands “fairly purchased from the Indians,”
and since many members of Congress had substantial landholdings that fell into this category, they would be likely to support the measure. Williamson suggested that Blount exchange the tracts he held in a region the state had not purchased from the Indians for lands nearer Nashville; that “would be a great Speculation.” The lands not already purchased from the Indians were not likely to be purchased for years, “and in this private Belief was I in Carolina I would endeavor to make Exchanges accordingly.”60 In Washington’s America, those in the know about Indian policy communicated what they knew to those in the Indian land business.
the recently ratified Constitution provided general guidelines on how to make a treaty. Article II gave the president “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Article IV declared all treaties made under the authority of the United States to “be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” But the Constitution remained silent on the specifics about how treaties were to be carried out with the Indians. Two principal questions arose: How exactly did the Senate “advise and consent,” and were treaty agreements with Indian nations to “follow regular treaty procedures?”61 The negotiations with the Creeks would provide the answers.
Congress debated the appropriate amount and then voted funding for the treaty commissioners and for carrying out the negotiations with the Creeks. The House Speaker signed the bill; it was sent to the Senate for Vice President John Adams’s signature on August 20, 1789, and the president signed it the same day.62 Washington also took seriously the stipulation that the president should act with the advice and consent of the Senate. He was conscious of the need to establish proper protocol and thought oral communication was essential because discussing the issues in writing “would be tedious without being satisfactory.” Consequently, he informed the Senate on August 21 that he would appear in person in the Senate Chamber the next morning at eleven thirty “to advise with them” on the terms of the treaty to be negotiated with the Creeks.63
There was a lot riding on it. Since the southern tribes could raise so many warriors, attaching them to the United States was “highly worthy of the serious attention of Government,” Washington explained to the Senate. The goal was not only to secure peace on the frontier but also to create a buffer against the colonies of a European power, “which, in the mutations of policy may one day become the enemy of the United States.” The fate of the southern states might well depend on making an alliance with the southern Indians. Unsure about what instructions the treaty commissioners should receive, Washington and Knox prepared a series of questions for the Senate to consider. The first two questions regarded the Cherokees, Choctaws, and Chickasaws and were dealt with quickly. The rest dealt with the Creeks in “a series of either/or proposals for the Senate’s judgment.” If the commissioners found that the Creek nation had been fully represented at the three Georgia treaties and the treaties were “just and equitable,” should they insist on formal renewal and confirmation of those treaties? If the Creeks refused, should the commissioners tell them military force would be employed to compel them? How should the commissioners attempt to obtain a cession of the lands if they judged that the three treaties had been made without adequate representation or under coercion? Considering the importance of the Oconee lands to Georgia and of a Creek allegiance to the United States, what should the commissioners do if the Creeks refused all offers to cede the lands in question—issue an ultimatum or make a new treaty that included the disputed lands within the boundaries assigned to the Creeks? Finally, Washington inquired if the $20,000 appropriated for treaties could, if necessary, be applied entirely to a treaty with the Creeks.64 On Saturday, August 22, Washington and Knox walked in person to the Senate Chamber armed with their questions.65
It did not go well. Washington may have anticipated a formality; instead he got a fiasco. John Adams was Washington’s vice president, but he was also ex officio president of the Senate. No one knew exactly what the proper protocol was, what forms of address should be employed, or how to act when the president of the United States came to the Senate. An awkward scene ensued, recorded in the journal kept by William Maclay. Maclay had served in Forbes’s campaign in 1758 and in Bouquet’s command at Bushy Run in 1763, and was one of Pennsylvania’s representatives at the Treaty of Fort Stanwix in 1784. He was now a senator from Pennsylvania and a caustic critic of Adams, Washington, Hamilton, and the new Constitution. (He described Washington sarcastically as “the greatest Man in the World” and suggested that Hamilton used the president’s renown to silence criticisms of his own dirty dealing).66 When Washington entered the chamber, he took Adams’s chair, and Knox sat beside him, facing the Senate. Adams joined the other senators. Knox handed Washington a document, which Washington handed to Adams. Adams proceeded to read it aloud, but his voice was drowned out by carriages passing in the street outside. “Such a noise!” wrote Maclay. “I could tell it was something about Indians, but was not master of one sentence of it.” Robert Morris, the other senator from Pennsylvania, said the traffic noise was so great he had not heard the bulk of the paper, and asked for it to be read again. They closed the windows. Adams reread the document and asked the Senate, “Do you advise and consent?” There was a “dead pause,” said Maclay. When Maclay asked to see supporting documents, Washington gave a look of “stern displeasure.” Maclay and Morris suggested the matter be submitted to a committee to review the materials: “I saw no chance of a fair investigation of subjects while the President of the United States sat there, with his Secretary of War, to support his opinions and overawe the timid and neutral part of the Senate,” Maclay wrote. This prompted a debate on the meaning of “advise and consent” and about doing business by committee. Adams tried in vain to move things along and get the Senate to consent, but they were awash in procedural difficulties. “This defeats every purpose of my coming here!” exclaimed Washington in exasperation—or what Maclay called a “violent fret.” After he had cooled down, he agreed to put things off until Monday, and the discussion was postponed. When Washington returned two days later he was “placid and serene,” and the matter was concluded, but, he was overheard to say, he would “be damned if he ever went there again” to request Senate approval on Indian treaty business.67
No president since has gone to the Senate Chamber to seek either advice or consent on a treaty. Washington reasoned that the Constitution subjected the final treaty, not treaty-making itself, to the advice and consent of the Senate; it assigned initiating, negotiating, and drawing up the terms of the treaty to the president alone. Appearing in person before the Senate, said Washington, put the president of the United States in the awkward situation of being subordinate to his own vice president as president of the Senate. Maclay thought the president wanted the Senate simply to rubber-stamp his actions. In future, the president initiated treaties and nominated appointments first and then requested the Senate’s consent (not advice) on paper, not in person. The president would appear in the Capitol only at joint sessions of Congress and at the president’s choice of time and place. Instead of developing a consultative partnership with the Senate, Washington increasingly turned to his department heads, and the cabinet emerged as the president’s de facto council and sounding board. By limiting the advise-and-consent provision of the Constitution, Washington helped establish the power of the president to act in foreign affairs before seeking input from the legislative body and to set foreign policy. A mishandled meeting over the terms of an Indian treaty, writes Ron Chernow, “may have done more to define the presidency and the conduct of American foreign policy than an entire bookshelf of Supreme Court decisions on the separation of powers.”68
After the debacle in the Senate, the president turned his attention to the Creeks. Even before Washington actually took the oath of office, American commissioners had sent them
an invitation to a conference at Rock Landing on the Oconee River to resolve their land disputes with Georgia. Things would be different now that all Americans were governed by a president, “like the old King over the great water,” they promised: “He will have regard to the welfare of all the Indians; and, when peace shall be established, he will be your father and you will be his children, so that none shall dare to do you harm.”69 The commissioners overestimated Washington’s authority over his citizens and the Creeks’ willingness to be anyone’s children.
As treaty commissioners at Rock Landing, Washington appointed Revolutionary general Benjamin Lincoln; Cyrus Griffin of Virginia, who had been the last president of the Continental Congress; and David Humphreys, who had been Washington’s aide-de-camp during the Revolution and later aspired to write his biography. It was, he impressed on them, “an object of high national importance” to be at peace with the Indian nations of the South and win them over “by a just and liberal system of policy.” The commissioners were to ascertain whether the chiefs who had signed the treaties at Augusta, Galphinton, and Shoulderbone represented all the Creeks; whether coercion or subterfuge had been employed; and, accordingly, whether the cessions of territory between the Ogechee and Ocmulgee Rivers were binding. Given the hostilities that had ensued from those contested treaties, Washington insisted that in this treaty the whole nation “must be fully represented and solemnly acknowledged to be so by the Creeks themselves.” The commissioners were to make clear that the United States did not want the Creeks’ lands, only to be their friends and protectors and treat them with justice and humanity. But since the disputed lands had already been opened to settlers, it would be “highly embarrassing” to return them. To get the Creeks to accept the cession, he advised offering them a safe port through which their trade would flow and offering the leaders gifts, bribes, and military titles. He also urged them to win the allegiance of McGillivray.70
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