The Treaty of New York was the first US-Indian treaty negotiation held outside of Indian country. The Creeks were in the city for more than three weeks. They attended endless meetings, informal conferences, and dinners, and they saw the sights. McGillivray did most of the talking, and his negotiations would have been conducted in English. “He had more conversation with General Washington, and his great men, than we,” White Bird King recalled later. One critic suggested that the treaty was “patched up” in Knox’s “closet.”113
On one occasion, Washington took the principal chiefs into the room where the artist John Trumbull had recently completed the president’s portrait. According to Trumbull, “when the door was thrown open, they started at seeing another ‘Great Father’ standing in the room” and approached the portrait with wonder and astonishment. Whether or not the other chiefs were as openmouthed as Trumbull described, McGillivray would not have been overawed. Before they left New York, Trumbull surreptitiously sketched portraits of several of the Creeks.114
On August 4, 1790, Washington notified the Senate the treaty negotiations were “far advanced.” The Creeks would agree to cede to Georgia the lands east of the Oconee River, hand over all captives, and acknowledge the sovereignty of the United States. In return the United States would give back the lands south of the Altamaha River. Knox “readily concurred” with the Creeks that the three treaties signed with Georgia at Augusta, Galphinton, and Shoulderbone were fraudulent and invalid.115 Only weeks after Congress passed the Indian Trade and Intercourse Act, regulating commerce with the tribes, Washington asked the Senate to approve a secret article authorizing duty-free passage of Creek trade goods through American ports in the event that the tribe’s regular channels of trade became obstructed. “As the trade of the Indians is a main means of their political management,” he explained, “the United States cannot possess any security for the performance of treaties with the Creeks, while their trade is liable to be interrupted or withheld, at the caprice of two foreign powers.” The Senate immediately gave its consent. With this agreement, McGillivray achieved his main goal in coming to New York. And since it was understood that Washington’s government would allow no merchant to do business in Creek country without McGillivray’s approval, the arrangement effectively gave McGillivray a monopoly on the trade.116
During the negotiations, McGillivray expressed his willingness to see the Creeks become “cultivators and herdsmen instead of Hunters.” Knox responded that the government would “cheerfully concur in so laudable design.” The government further agreed to educate and clothe up to four Creek youths at any one time.117
On August 7 the articles of the treaty were read. The treaty document opened by announcing perpetual peace and friendship between the two peoples, and the Creeks acknowledged themselves to be under the protection of the United States “and of no other sovereign whosoever,” meaning Spain in particular. It contained routine provisions, such as prisoner exchange, punishment of crimes under American law, return of property, protection of Indian hunting grounds, and placing American interpreters among the Indians. Article 12 stipulated that the United States would from time to time furnish the Creeks with domestic animals and farm implements in order to elevate them “to a greater degree of civilization.”118 The Creeks had the right to expel white trespassers on their land, but the eastern boundary of Creek country was set at the Oconee River; in other words, McGillivray gave up the lands between the Ogeechee and the Oconee that he had refused to part with at Rock Landing.
Presumably the secret articles helped him change his mind. In addition to the provision for a trade monopoly, the secret articles gave McGillivray a commission as brigadier general with an annual salary of $1,200, more than the stipend he received from Spain. Lesser Creek chiefs would receive smaller amounts. The public treaty was written on three sheets of parchment stitched together and with seals affixed at the bottom. Knox signed for the United States. McGillivray signed first, and twenty-three other chiefs made their marks according to their towns. Eight other people signed as witnesses.119 Only McGillivray signed the secret articles.120 A few days later he sent Carlos Howard “an exact compendium” of his negotiations and the terms of the treaty, insisting on the purity of his motives, and claiming he had resisted accepting the honorary commission as brigadier general as long as he decently could.121
Washington presented the treaty to the Senate the same day Knox and McGillivray signed it. “While I flatter myself that this treaty will be productive of present peace and prosperity to our southern frontier,” he told the senators, “it is to be expected that it will also in its consequences be the means of firmly attaching the Creeks and the neighboring tribes to the interests of the United States.” There was cause for concern, however: the Creeks ceded to Georgia the disputed land on the Oconee River but retained hunting rights southwest of the junction of the Ocmulgee and Oconeee, and Georgia claimed a tract of land between the Ocmulgee/Oconee junction and the St. Marys River to the south, which the Creeks said constituted “some of their most valuable hunting ground” and “absolutely refuse[d] to yield.”122
It was the first treaty made under the Constitution. The Senate ratified it by a vote of 15–4 on August 12. Washington and Jefferson signed it the next day in a formal ceremony held in the House Chamber at Federal Hall. Everyone present, including the Spanish and British representatives in the large audience, were aware of the treaty’s public provisions, but it’s not clear exactly who knew about the secret clauses.123
The ceremony was the federal government’s last official function in Federal Hall. It caused quite a stir. The galleries were filled with people curious to see and anxious to be seen. The cabinet members, officers of government, members of Congress, and ambassadors of foreign courts whom Jefferson had invited were seated “according to their rank.” After Martha and other members of the president’s family took their seats, McGillivray led the Creeks in singing a song of peace. McGillivray wore a brigadier general’s uniform; the others wore colonels’ uniforms in blue faced with red, headscarves ornamented with feathers and wreaths, face paint, earrings, and nose jewelry. Washington appeared, wearing “Vestments of rich purple satin,” and “a reverential silence” descended. With all eyes on him, he ascended to his chair, and his secretary, Tobias Lear, read the articles of the treaty. Then the president rose from his seat and delivered a formal address to the assembled citizens and Creek chiefs. With an interpreter translating and the Creeks voicing their approval at the end of each sentence, Washington declared the treaty just and equal and stated the mutual obligations of the contracting parties. He called on the Creeks to do all they could to conciliate their people and wipe away animosities, “and he supplicated the great spirit, the Master of breath, to forbid an infringement of a Contract, formed under such happy auspices.” Then the formal signing took place. Washington presented McGillivray with tokens of peace: a string of beads and a paper of tobacco for the calumet pipe of friendship. McGillivray gave a short speech and wampum in return. The Creeks advanced one by one, clasped the president’s right arm, and sang a second song of peace, thereby concluding “this affecting, important, and dignified transaction.” The president invited the attendees to take punch at his house, and later there was “a grand dinner” for the Indians, which four Kahnawakes who were in New York seeking compensation for their services during the Revolution also attended. National songs and dances ended the celebrations. One eyewitness, who described the events for her parents the next day, felt she had been a spectator at a scene which “succeeding Centuries may not repeat.”124
The president proclaimed the treaty the next day, and it was quickly published and circulated in the nation’s newspapers.125 Both sides appeared pleased with the finished product. The United States had avoided an Indian war, established peace with the most powerful Indian nation in the South, secured space for Georgia settlers on Creek land, and enhanced the standing of the national government over the state. Knox claimed the
treaty was “new and honorable evidence of the vigilance and wisdom of the executive of the U.S.”126 McGillivray told Representative William Smith of South Carolina at dinner that ever since he took over leadership of his nation, his life had been taken up with war or preparation for war, and he could now “anticipate with pleasure the tranquil enjoyments of peace.” Smith thought he could not be in better hands than Washington and Knox, “who vie with each other in acts of friendship.”127 McGillivray said later that he had “been obliged to give up something in order to secure the rest.”128 The “something” was the land between the Oconee and the Ogeechee; the “rest” included American recognition of his “office as head chief of the Creeks,” an annual stipend, the promise of a free port, and guaranteed continuance of his monopoly on trade. He also secured American promises to protect Creek territory against further encroachments. When the Creek delegates returned home and told what they had seen and done, one town commemorated the treaty by taking a new name: Nuyakv, pronounced “nu-yaw-kah,” which is what the delegates heard when the residents of the city said “New Yorker.” According to the author and Indian rights advocate Suzan Shown Harjo, whose ancestors lived in the town, the delegates to the New York Treaty were “the founding fathers of Nuyakv.”129
Washington wrote to Lafayette with the news of the treaty before the Creek chiefs left town. “This event will leave us in peace from one end of our borders to the other, except where it may be interrupted by a small refugee banditti of Cherokees and Shawnee, who can be easily chastised or even extirpated if it shall become necessary.” Such action would only be applied in extreme circumstances “since the basis of our proceedings with the Indian Nations has been, and shall be justice, during the period in which I may have anything to do in the administration of this government.”130 The letter conveyed the twin elements of Washington’s Indian policy: peace and justice if possible, extermination if necessary.
despite the mutual satisfaction of the parties who made it, the treaty failed to become, in Knox’s words, “the instrument of our future peace and happiness.”131 Those who were left out of the negotiations protested.132 The Oconee River boundary was farther west than Creeks wanted and farther east than Georgians wanted.133 Georgians resented the celebrity status accorded to McGillivray in New York and denounced the treaty as illegitimate, an act of betrayal by the federal government. Exercising powers far beyond what the new constitution allowed and in a clear breach of their state’s rights, the government had taken the Creeks’ side in the controversy and, by not including the cessions made at Galphinton and Shoulderbone, handed back more than 3 million acres of land that rightfully belonged to Georgia. “The Indians to the South are to be treated with humanity, and those to the North are to be butchered, that the United States may enjoy their property,” a Georgia congressman declared, bluntly pointing out the sectional differences in Washington’s Indian policy.134 And the government’s promise of agricultural instruction suggested that the Creeks, rather than giving up rich farming lands that Georgians coveted, would, literally, be putting down more roots. Georgians continued to encroach into Creek territory in open defiance of the treaty. Washington described those Georgians dissatisfied with the treaty as “Land Jobbers, who, Maugre [despite] every principle of Justice to the Indians & policy to their Country would, for their own immediate emolument, strip the Indns. of all their territory if they could obtain the least countenance to the measure.”135 Although he did not see it, he could have been describing himself twenty years earlier.
Lacking the military and financial resources to exert the dominance it claimed over the southern Indian nations, the United States had to keep peace with them. Washington recognized that the Creek treaty was only a foundation for peace and that the United States must fulfill its treaties with other tribes in the area—namely, the Treaty of Hopewell with the Cherokees, Choctaws, and Chickasaws, which, he told the Senate, frontier settlers “had openly violated.”136 During the negotiations in New York, McGillivray had “protested strongly against the behavior of the new western companies, in the terms in which Georgia has formed them,” and said he had “the word of the government that said companies will be broken up.” The Trade and Intercourse Act passed that July prohibited purchases of Indian land without congressional approval, rendering such land sales illegal. Washington maintained that Georgia’s land sales to the Yazoo companies also violated federal treaties with the Choctaws and Chickasaws. He issued a proclamation on August 26, announcing the new law and requiring all officers and citizens of the United States to observe the nation’s Indian treaties or “answer the contrary at their peril.”137 The Yazoo Companies shelved their plans, and the Georgia legislature nullified their grants in 1791, but the issue of the Yazoo lands was not over.138
Knox called McGillivray “the soul of the Creek nation,”139 but dissenting Creeks criticized McGillivray’s actions in New York and disputed his claim to represent the entire nation. He may have represented the Upper Creeks, and most of the delegates were Upper Creeks, but perhaps only four Lower Creeks went to New York, and no Seminoles.140 There also seems to have been some disagreement among the Creeks in New York. At least twenty-seven, and according to newspaper accounts as many as thirty, chiefs traveled to the city.141 But only twenty-four signed the treaty.142 It is uncertain if the others refused to sign—Knox indicated that ill health may have prevented them from doing so.143 Creek people may have balked at the Oconee cession, of land that belonged mainly to the Lower Creeks, or at article 12, which promised to turn them into farmers and herdsmen.144 Louis LeClerc de Milford, a Frenchman turned self-described Creek chief, said McGillivray ceded Washington “precisely the same land that the Georgians wanted to take by force from the two micos [Hoboithle Mico and Eneah Mico] … and for which reason we had waged a terrible war with the Anglo-Americans.” He said Creek chiefs were greatly displeased with the treaty and refused to ratify it.145 Six years later, one of the chiefs said McGillivray did not show the treaty to the Creeks when he returned home, and the nation did not hear of the cession of the Oconee lands “till lately.”146
Spain also sought to nullify the Treaty of New York. It took several months for the Spaniards to obtain a complete copy, and McGillivray disclosed the secret articles to them piecemeal and partially. Miró regarded it as a violation of the Treaty of Pensacola, “inasmuch as they accept the gifts and protection of those states.” Carlos Howard saw it as part of a campaign by the US government to sow discord and turn the Indians against Spain. As far as Spanish colonial officials were concerned, McGillivray would have to be replaced unless he disavowed the Treaty of New York. They did everything they could to foment opposition to the treaty among the Creeks.147
Preexisting divisions within Creek society, Spanish intrigues, opposition to McGillivray, Georgia’s resentment at the imposition of federal authority in its Indian affairs, and dissatisfaction with specific terms in the treaty all contributed to its failure. Georgia’s representatives in Congress had voted against ratification. Instead of recognizing the state’s rights, Representative James Jackson railed on the floor of the House some months later, the federal government had given away 3 million acres of Georgia’s land. “A savage of the Creek nation had been sent for, brought to the seat of government, entertained and caressed in a most extraordinary manner,” and sent home loaded with favors. Jackson wanted Washington to lay the whole treaty—including the rumored secret articles—before the House. “The constitution declares, that treaties shall be the supreme law of the land,” he said. “But will Congress permit the laws of the U.S. should, like the laws of Caligula, be hung up on high, out of sight, in order to draw the inhabitants of America into snares?” Georgia’s senators and representatives “growl exceedingly,” said Hugh Williamson; other people not in the business of land jobbing “seem to think the Treaty well made.”148 The stipulated boundary line was not surveyed because the Creeks would not cooperate with the American surveyors.149 Violence along the Creek-Georgi
a frontier continued.
Foreign intrigue swirled. William Augustus Bowles masqueraded as the self-styled director general of the Creek Nation. While McGillivray and his delegation were in New York negotiating with Washington, Bowles and a delegation of eight Creeks and Cherokees were in Quebec meeting with Lord Dorchester. As McGillivray’s delegation sailed out of New York, Bowles’s delegation sailed for London, where they stayed for five months. Although the Indian delegates dined with the Spanish ambassador in London, Bowles lobbied to gather British support for a scheme to wrest West Florida from Spanish control. By August 1791 he was back in Creek country, denouncing McGillivray’s land cession at New York and causing Washington and Knox considerable concern. The Spanish governor of Louisiana, Francisco Luis Hector, baron de Carondelet, who hoped to forge a multitribal confederation to block American expansion, threatened that if McGillivray did not reverse the Treaty of New York, Spain would shift its support to Bowles. But Bowles was a loose cannon—in January 1792 he and his followers sacked one of Panton, Leslie & Company’s stores—and Spain removed him from the scene. Bowles was imprisoned, shipped to Havana, then to Spain, and then to the Philippines. He would be back.150
Washington and Knox continued to try to fashion an effective peace. They knew that open war with the Creeks, “in the present crisis of European affairs, would be a complicated evil of great magnitude” and, as Knox put it, “would generate all sorts of Monsters.”151 They could no longer achieve peace by working with McGillivray. When John Pope visited McGillivray at his Little Tallassee plantation in 1791 (he found him supervising the building of a log cabin “embellished with dormer Windows” and said he had about fifty slaves), the Creek chief proudly showed him the gifts Washington had given him—a set of gilt-bound books and a gold epaulette. He considered the latter a great honor and said he prized it “far above Rubies and much fine Gold.”152 But Spain made him a better offer—an annual stipend of $2,000—and in July McGillivray signed a treaty at New Orleans with Carondelet, in which he renounced the Treaty of New York, gave up his American salary, and returned to his Spanish alliance. “It is far from my heart,” he told Carondelet, “to wish to have the least dependence on a people I know to be the Natural & determined enemy of all the Indian Nations & whom it is Incumbent on us to resist.” It was never his inclination to be on good terms with the Americans, he added six weeks later.153
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