Introduction: America, our landscape of paradox

What the Founders of the American republic could not have
forseen was the manner in which the success or failure of "National
expansion' to the Pacific Ocean in the 19th century would depend
almost entirely on one legal tool - the Indian treaty.

What the Founders of the American republic could not have forseen was the manner in which the success or failure of "National expansion' to the Pacific Ocean in the 19th century would depend almost entirely on one legal tool - the Indian treaty.



Declaration Of Ind

          From our earliest beginnings as a republic, long before the American colonists won independence from the king of England, men and women dreamed of building a nation of laws that safeguarded basic, inalienable rights for all citizens.  In the early 18th century this idea - a nation of laws - was a radical departure from the autocratic governments that had ruled the people of Europe for nearly two thousand years.   To build a nation of laws, wrote the 17th century English empiricist, John Locke (the ideological midwife of our Declaration of Independence), is the natural aspiration of all free men.


      When our Founders were presented with the opportunity to build just such a nation, they erected the American house of democracy upon a hierarchy of laws.  Some laws - the load bearing beams that support the floors and roof - have to carry more weight than the joists and rafters.   These structural laws protect our most sacred principles - that all men are created equally in the eyes of the law and have inherent rights to life, liberty, and the pursuit of happiness (and property).  They are enumerated in the first ten amendments to the U.S. Constitution, also know as the people's Bill of Rights.  Joining those laws is a keystone construct that the Founders called 'the supreme law of the land.'  This keystone construct gives the central government the power to make treaties in sovereign-to-sovereign compacts.

       Bundled together in the complex framework of the U.S. Constitution are the laws that carry forward the hopes and dreams of United States citizens from one generation to the next.  The Constitution also makes it possible for our nation to co-exist peacefully (and to resolve conflicts) within the larger community of nations.  At the other end of this spectrum of laws are those laws not embodied in the Constitution - laws, for example, that tell us how fast we can drive a car, that yelling 'Fire!' in a crowded theater is not protected under the freedom of speech, or how much it costs to license a pet.

Alexander Hamilton

           We might ask, as Alexander Hamilton asks in Federalist Papers, "Why has government been instituted at all?"  All of human history makes that answer rather obvious, says Hamilton.  We have instituted government because the history of human societies has taught us that "the passions of men will not conform to the dictates of reason and justice without constraint."   Thomas Jefferson and his cohorts disagreed with this assessment.  They argued that free men, left to their own devices and opportunities, would always act in an altruistic fashion that benefited their neighbors, and society in general.  Hamilton scoffed at this notion and accused Jefferson of being completely ignorant of 'the science of human nature.' The tension that existed between these views at the very beginning of our nation is the same tension that has charged the mainspring of democracy with its vibrancy and energy, ever since.  Such disagreements are both the strength of democracy, and its Achilles heel.

            Hamilton - the one true genius among a multitude of near deities we call our Founders -  had summarized human history in a few words: government is necessary because the passions of men will not conform to the dictates of reason and justice without constraint.  Joseph Ellis, one of George Washington's recent biographers, tells us that Washington agreed.  The nation's First Citizen saw deep and worrisome fault lines running through our national character.  From our earliest rumblings as a nation, he and Benjamin Franklin were deeply worried that "Life, liberty and the pursuit of happiness," the most cherished principles of American democracy, would be denied to the very people who made 'national expansion' possible -- the Native Americans.  With mounting dread, Washington recognized that "what was politically essential for a viable American nation was ideologically at odds with that it claimed to stand for."  He and Ben Franklin (among others) realized the United States was shaped at its moment of conception by antipodal ideals and underlying paradoxes.  Somewhere on the way to full national maturity there would have to be a reckoning between what was 'politically essential' for national survival, and what the nation claimed to stand for - the principles enshrined in it's laws.

        On the road to nationhood, the Founders elevated the government's treaty-making powers to the 'supreme law of the land' in order to prevent individual states from negotiating separate treaties with sovereign Indian nations.   As important as this provision was to the integrity of the national government, the Founders had laid claim to an exclusive privilege that would fuel all future battles over federalism (the distribution of power among competing governments).  As Chief Justice John Marshall later explained in several important Indian cases,  the U.S. Constitution was a flawed document of incorporation.  Chief among those flaws was the Founders'Treaty of Greenville.jpg failure to explain how sovereign Indian nations would fit into the scheme of federalism that incorporated many state governments within one national government.  As we now know, this flaw in the national charter would account for untold misery, bloodshed, and the 'genocide' of Indian people throughout the nation's first century.

     Without the supremacy clause, without the power to make treaties with sovereign nations (Article VI of the Constitution), the tiny republic of thirteen states on the eastern seaboard could never have expanded beyond the Appalachian ridgeline. The 'supremacy clause' in Article VI of the Constitution put the federal government, and the leaders of Indian nations, on an equal legal footing in sovereign-to-sovereign negotiations over Indian owned lands and resources.  As restless citizens looked west to establish new settlements in the Ohio Valley, the first casualties of national expansion would be the nation's most sacred laws.   Just as Washington had feared, the vanguard of white society trampled the native's inherent sovereignty and freedom with grave consequences for the nation's most sacred principles: 'life, liberty, and the pursuit of happiness.'  The first society to build itself into nation of laws was also the first to violate those laws in the name of national expansion.   Eastern tribes were the first to experience a new truth about the republic of laws and its legal system: the values of liberty and equality in America were contingent on whose liberty and equality were at stake in all contests over land and resources.

Indian Country 1783

     When the United States was founded in 1787, it came into existence inside the much larger boundaries of Native America.  Over the next hundred years, land cessions made in hundreds of treaties by 500 Indian nations, and ratified by the U. S. Senate, allowed the westward-looking Americans to expand across the continent to the Pacific Ocean.  To our national misfortune, generations of American school children have been taught a simplistic thesis of expansion put forward by historian Fredrick Jackson Turner more than a century ago; that the plotline of the nation's story followed the frontier west to the Pacific Ocean.  Here, we argue that Turner's frontier thesis is an earnest but simplistic subplot to a much larger narrative that better explains the century-long phenomenon we call 'national expansion.'  

          Instead of constructing our national story by following frontier settlements across the continent, as Turner recommends, we argue that the story of the nation's laws, and the story of how those laws shaped the hundreds of treaties we made with sovereign Indian nations, creates a much more compelling and accurate account of how Americans accomplished 'national expansion' to the Pacific Ocean in the 19th century.  This reinterpretation explains 'how' and 'why' the hundreds of treaties with Indian nations make a precise and faithful model for our national story. Wounded Knee Masacre

         Our story of 'national expansion' begins with the signing of the first treaty of friendship with the Delawares, in 1778,  and ends over a century later when the census of 1900 showed that a robust civilization of many millions of native people had been reduced to fewer than 250,000 in less than two centuries.  This model also demostrates how George Washington and Benjamin Franklin's fears became the history of record that we share today with Native Americans (African Americans, Latinos, and Asian Americans).  On our path to full national maturity, the historical record makes it clear that we abandoned our most sacred laws in order to lay claim millions of square miles of land owned by sovereign Indian nations.

        Seen through the parallel lenses of history and law, 20/20 hindsight explains how Indian treaties became society's stepping-stones across the continent.  In steady and methodical fashion, settlers moved across the eastern wilderness owned by the Five Civilized Tribes and the Iroquois Confederacy, the Sauk and Foxes and Miami and Delaware, among others, and jumped across the Mississippi River where they made treaties for land cessions with tribes in Arkansas, Missouri, and Iowa, before forcing them, too, off their lands.  As the Second Era of treaty-making began in 1850, settlers crossed the Indian land bridge between Independence, Missouri, and the Willamette Valley of Oregon, and devastated Indian lands and resources.  They pushed their settlements across a Great Plains owned by the Mandan, Hidatsa, Arikara, Sioux, Pawnee, Kiowa, Comanche, and Assiniboine, where they turned the prairie into rectangular homesteads before mounting an assault on the Rocky Mountains of the Shoshone, Crow, Blackfeet, Nez Perce, Cheyenne, and Flathead. Cheyenne Warriors Treaties they made with mountain and river tribes carried them to the Pacific Ocean.  Once there, treaties of peace with dozens of coastal tribes, such as the Modoc, the Cahuilla, Salish, and Snohomish, among others, were abrogated almost as quickly as gold prospectors, settlers, and fur traders, turned the ceremonies of peace into a record of national dishonor.  Only one in six California Indians survived the golden state's the first decade of statehood.

          As the preeminent legal scholar, historian, and author, Charles Wilkinson, has written,  "This is the true story of the era of Manifest Destiny and the westward expansion."  This is America's story, our story -  the enduring legacy of the paradox of freedom that is yours, mine, ours, and the birthright of all who will follow us.  This web site seeks to support the film and the book with materials and resources that provide essential context for the extraordinary role that treaties, and Native American nations, played in the making of this nation.  The History Wheel, the hub of this site, integrates a multitude of sources, events, people, and places, into a (hopefully) coherent, multifaceted picture of how our nation was made.  Ours is an epic tale of popes and kings, presidents and rogues and savages and scoundrels, a national narrative that is written in the blood of the best and worst of us, on the timeless dust of this land.