American Indian Heritage Month: Commemoration vs. Exploitation
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Northwest Ordinance (1787)

Composed by the Confederation Congress (1787–1789) in the same year as the Constitution, the Northwest Ordinance is a multifaceted document. Ostensibly it is a design by the Congress for regional development of a territory it presumed it had acquired through its apparent success in negotiating the terms of independence in 1783. However, its character as a statement of republican ideals in a framework for the territorial governance (of non-Natives by choice and of Natives and slaves by force) renders it a catalogue of reference for a slate of issues relevant to contemporary cultural and political themes. Slavery, state's rights, religious freedom, habeus corpus, universal schooling, the financial ethics of politicians, and, not least, Indian relations are all addressed, if imperfectly and highly selectively, by the terms or context of the Northwest Ordinance. Truly, the audacity of the wide-ranging affairs brought together by the Congress under this document lies in its aim to provide development objectives for an extensive territory it had yet to bring under physical control and in its character as a precursor to the Bill of Rights. It was composed concurrently with the federal Constitution, which famously mentions Indians only as economically defined exceptions to the establishment of the new citizenry ("Indians not taxed" [Article I, Section 2, for example]) and elsewhere as simply trade concerns. As a result, many scholars of Indian affairs look to the Ordinance as an immediate predecessor to glean clues about the intentions of the Congress toward American Indians. In that context, the Ordinance is most recognized and referenced by its (cynical) statement of the apparent position of the Congress toward Indian Nations, articulated in the Third Article, which consists, significantly, of an exegesis primarily concerned with morality:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands 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 (Continental Congress, 1904–1937, 31: 340–341).

Among the earliest of formal statements of general intent toward Indian nations as a whole, the document, while not a treaty, is consistently utilized as a point of reference, with the "utmost good faith" and "without their consent" clauses suggesting the obligation of the federal government to act as the trustee of American Indian lands, an obligation that it would later codify and then proceed more or less to ignore. To limit the interpretation of the Ordinance to these assumptions would miss many critical aspects of the legislation and an understanding of its creators' strategic interests. Within the same year, preparations were made to make expedient use of the option reserved in the latter clause, "in just and lawful wars." The campaign against the tribes of the Northwest Territory began in earnest in 1788 with the assignment of Arthur St. Clair to the region as governor.

With the apparent inconsistencies between the document's stated intentions and the state of affairs in the region it aimed to administer, the Northwest Ordinance can be best understood through analysis of economic policy at the time of its writing and of the key figures shaping Indian policy. The Ordinance continued the Federalist-driven vision of a monopoly on Indian affairs, to the exclusion of the states, begun with the 1785 passage of the Indian Policy Act and continued with the 1786 Ordinance for the Regulation and Management of Indian Affairs; but this earlier legislation that attempted to bring Indian affairs under centralized oversight was not effective (Prucha, 1995, 47). Items such as the requirement for trading licenses to be issued only by Congress were all but ignored on the frontier.

Despite the ongoing state of war, many scholars believe that the Congress did intend to deal more peaceably with Indian nations than in the past, was aware of the standing of its actions in international law, and did hope to control and contain the settlement of the frontier, as opposed to allowing the wholesale overrunning of Indian lands (the "wrongs done to them" mentioned in the Ordinance) (Deloria and Wilkins, 1999, 17). However, assumptions must be seen as strategic: Congress had become convinced that it was far more efficient to treat Indians in a manner that recognized their autonomy and thereby maintained peace, but that exchanged the peace, as well as terms of trade, for their lands through purchase agreements made exclusively with the central government. The most significant obstacle to this strategy was, of course, the states themselves (through their anti-Federalist delegates), who generally wished to deal with Indians in a manner profitable for their own interests or that of their foremost citizens, until such conflicts arose that needed military backing. This was particularly the case in states such as Georgia, North Carolina, and New York, where representatives had already begun negotiating terms of trade with the Iroquois tribes without authorization from Congress.

The strategy to resolve this situation was a combined effort of military officials such as Secretary of War Henry Knox and, of course, George Washington, who knew only too well how expensive Indian wars were, and of the many economic thinkers among the Congress; the postrevolutionary government was deeply in debt and was, above all, concerned with securing financial stability. To that end, Congress—moving toward the centralization of power it articulated in the Constitutional Convention—saw that the control of Indian trade and of the wealth contained in title to Indian-controlled lands was essential to the new nation's financial future. Proposals to sell lands in the Ohio country were already before the Congress (Prucha, 1995, 45). This explains the immediacy with which the Congress secured the Northwest Territory militarily, as well as its treating with Indians, as General Knox had been persuasive in asserting, not as conquered peoples, but relatively liberally and on terms that would encourage them to deal only with the Congress (Horsman, 1967, 41).

Thus, with respect to Indian relations, the Ordinance is significant as a template for Indian relations and treaty making as it would be conducted into the 1800s. Indeed, the conflicts in the Northwest would be resolved at the Treaty of Greenville in 1795, in which, like the treaties of Fort Harmar (1789) and Canandaigua (1794) before it, "in consideration of the peace now established," the terms of agreement between apparently equal parties would become increasingly standardized, to more clearly define Indian rights and to negotiate the transfer of very specific tracts of land, treaty by treaty, from individual tribes, always with the proviso that if they "shall be disposed to sell" additional lands in the future they will deal only with agents of the United States.

This is the context for a much less referenced Ordinance passage, a statement of its objective to "lay out the parts of the district in which the Indian titles shall have been extinguished."

The Northwest Ordinance's evaluation by historians has been mixed. Many recognize it as the crowning achievement of the Confederation period, while others see it as a crowning act of hypocrisy. Apologists generally note its forethought for the future of the republic through its procedural provisions for the organization and incorporation of new states, and its pre–Bill of Rights narrative, with less attention to the source for such vision. It is important to note that recent scholarship has shown that an additional dimension of the document, with respect to American Indian history, is that its authors, like those of the Constitution, were familiar with existing forms of Indian governance that preserved individual liberties and that, in cases such as the Iroquois Confederacy, provided protocols for the incorporation of new member nations (Grinde and Johansen, 1991, 194). Their apparent ability to be influenced by Native thought and governance, and yet provide so calculatingly for their dispossession, gives critical evidence of the complex character of the founding generation. Further complicating this scenario is the clear conflict of interest of some members of Congress who were involved in regional planning legislation, yet who also held vested interest in the outcomes (for instance, Hauptman, 1995). The Ordinance would be ratified under the constitutional government in 1789; only its trade provisions would require further articulation in the Trade and Intercourse Acts.

Christopher Lindsay Turner


Further Reading
Continental Congress. 1904–1937. Journals of the Continental Congress, 1774–1789. Washington, DC: U.S. Congress.; Deloria, Vine, Jr., and David E. Wilkins. 1999. Tribes, Treaties, & Constitutional Tribulations. Austin: University of Texas Press.; Grinde, Donald A., Jr., and Bruce E. Johansen. 1991. Exemplar of Liberty: Native America and the Evolution of Democracy. Los Angeles, CA: UCLA American Indian Studies Center.; Hauptman, Laurence M. 1995. Tribes & Tribulations: Misconceptions About American Indians and Their Histories. Albuquerque: University of New Mexico Press.; Horsman, Reginald. 1967. Expansion and American Indian Policy, 1783–1812. Norman: University of Oklahoma Press.; Prucha, Francis Paul. 1995. The Great Father: The United States Government and American Indians. Lincoln: University of Nebraska Press.
 

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