Historical Context and American Policy
• New Nation
In 1777, the Continental Congress approved the Articles of Confederation to govern the new nation but not without first wrangling over provisions dealing with whether the management of Indian affairs should follow the British model and be consolidated under federal authority or if Indian policymaking should be granted to the individual states. It was an important question-seeking allies against the British, the Americans negotiated their first Indian treaty with the Delaware in 1778 (see Treaty with the Delawares, 1778) - and, in the end, Congress approved ambiguous language that gave the federal government the "exclusive right" of "regulating the trade and managing all affairs with the Indian" outside of state boundaries but seemingly left Indians living within state boundaries under state authority. The ambiguity was finally resolved when the Articles of Confederation was scrapped in favor of a new Constitution in 1787-a year before John Meares dropped anchor at Cape Flattery to trade with the Makah.
Even as the framers of the Constitution went to work in Philadelphia, Congress, acting under the Articles of Confederation, approved a law that enunciated the government's intent to establish a clear and impenetrable boundary between whites and Indians while at the same time promoting the orderly transfer of Indian lands to American citizens. This law, the Northwest Ordinance, was approved in July 1787 and is known primarily because it outlined the procedure by which the nation's territories could become states and assured that all new states would have the same rights and privileges as those that preceded them. It did, however, also assert:
The utmost good faith shall always be observed towards the Indians, their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress, but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. (See Northwest Ordinance, pp. 340-41.)
As historian Colin Calloway has pointed out, there are inherent inconsistencies in the idea of converting Indian territories into states while respecting the integrity of Indian lands and maintaining peace: "…the Ordinance … laid out a blueprint for national expansion: the [Old] Northwest Territory was to be divided into districts which, after passing through territorial status, would become states.... Indians who resisted American expansion soon found themselves subjected to 'just and lawful wars.'" Indeed, Natives everywhere along the border between Indian country and white settlements were feeling pressure from Americans hungry for new lands.
While the framers of the Constitution made it clear that Congress-not the states-had the power "To regulate commerce with foreign nations, and among the several States, and with the Indian tribes," the supremacy of federal authority in Indian affairs was still disputed by some states. That supremacy was established conclusively in the landmark 1832 Supreme Court decision, Worcester v. Georgia. Speaking for the majority, Chief Justice John Marshall said that single Constitutional clause gave Congress the power to establish treaties with the Indians and regulate trade with them. He concluded that "These powers comprehend all that is required for the regulation of our intercourse with the Indians." In a previous case, Marshall had also authored the court's decision in Cherokee Nation v. Georgia (1831) that established that Indian tribes should be considered "domestic dependent nations" that had a relationship with the United States that "resembles that of a ward to his guardian." (See Cherokee Nation v. Georgia.) Marshall wrote, "They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father." Taken together, the two court decisions clarified the status of Indian tribes in the new nation. These court decisions also tacitly recognized the failure of federal policies aimed at maintaining peace between whites and Indians by establishing impenetrable boundaries between their communities.
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