Introduction to the Treaties

treatymap3Between April 29, 1851, and August 22; 1852, a series of eighteen treaties "of friendship and peace" were negotiated with a large number of what were said to be "tribes" of California Indians by three treaty Commissioners whose appointments by President Millard Fillmore were authorized by the U.S. Senate on September 29, 1850.

Eighteen treaties were made but the Senate on July 8, 1852 refused to ratify them in executive session and ordered them filed under an injunction of secrecy which was not removed until January 18, 1905

(Ellison 1922 - 1925).

A detailed account of the whole matter of the appointment of the three Commissioners (George W. Barbour, Redick McKee and O. M. Wozencraft), their travels and an analysis of the actual nature of the groups listed as "tribes" has been prepared (Heizer and Anderson, n.d.) and will, I hope, some day be published.

C. Hart Merriam in 1926 prepared, at the request of the Subcommittee of the House of Representatives Committee on Indian Affairs, a detailed identification of what he called "alleged tribes" signing the 18 treaties. His working papers are filed in the C. Hart Merriam Collection (identified more fully in the appended references: Merriam Collection [1926]).

A similar and wholly independent analysis of this sort was made in 1955 for the Plaintiff's counsel in the Indian Claims Commission hearings on Dockets 31/37. This was introduced as Exhibit ALK-8. A copy of this analysis with a map (Heizer [1955]) is filed as Ms. No. 443 in the archives of the Archaeological Research Facility, Department of Anthropology; University of California, Berkeley. Use of both documents is presently restricted.

The texts of the unratified treaties were made public on January 19, 1905 at the order of the U.S. Senate which met in executive session on that day in the Thirty-second Congress, First Session. The treaties were published subsequently several times in connection with hearings held by the Subcommittee of the Committee on Indian Affairs, H.R. But copies of the treaties are somwhat difficult to find in the mountains of Senate and House documents published by the Government Printing Office, and it is hoped that the present partial reprinting may make their contents more readily available.

The first and second treaties ("M" and "N") were negotiated by the Commissioners acting together as a board. But the urgency of the matter, difficulties of treating with Indians over such a large area, and the slownness involved in the three men acting as a board, indicated the desirability of each Commissioner assuming responsibility for a large area so that the state could be covered more rapidly. As a result, and because they could not informally agree on who was to be responsible for which area, the Commissioners drew lots. Barbour arranged for treaties "A"-"D". Wozencraft arranged 8 treaties ("E"- "L". and McKee for four ("O"-"R").

The treaties differ somewhat in their wording, but they are essentially all the same. We reprint here in full the first two treaties made ("M" and "N") and one of McKee's treaties ("O"), one of Barbour's ("C") and one of Wozencraft ("K") which was the latest of the eighteen. For the rest we reprint only Articles 3 or 4 which define the area which was to be "set apart and foreve held'for the sole use and occupancy of said tribes of Indians", the tribal designations, native representatives and the American participants. The reader can, without much difficulty, learn the content of the Articles which are here omitted. These deletions are indicated by an ellipsis in the center of the page.

Some treaties (for example "A"-"D") were "signed" by Indians who, almost without exception, had Spanish given names. We may assume that the treaty was read to them in Spanish by an interpreter who was attached to the treaty-making party, and that the provisions in the treaty were understood by the signatories. On the other hand~ a number of treaties were "signed" by Indians who did not have Spanish given names and who, for the most part, probably did not know either Spanish or English. In some of these instances, it seems highly unlikely that the so-called interpreters knew the several native tongues of the people who were being parlayed with. And while there may have been some kind of communication, there is great probability that the literal wording of the treaties often was not, and indeed could not be, made intelligible to the Indians present.

But the distance between theory and practice went even further. None of the Commissioners had any knowledge whatsoever of California Indians or the cultural practices, especially those regarding land ownership and use. As treaty makers they were under orders to make certain arrangements with California Indian tribes. As they moved with their trains through the state they made Camps, sent out the word that the treaty-making party was anxious to talk with the local peopie, visited Indians in villages and invited them to attend treaty-making session. Some Indians were suspicious and refused to attend, with the result that troops might discipline them.

Every group met with is listed as representing a "tribe". We do not know whether the Commissioners were aware of the true nature of the named groups which they were dealing with. George Gibbs who accompanied Redick McKee seemed to be conscious of the error that was being made in assuming that any named was a tribe (Gibbs 1853:110). We know today that most of the so-called tribes were nothing more than villages. We can also assume that men listed as "chiefs" were just as likely not to be chiefs, or at least tribelet heads who are called chiefs by anthropologists. Further, since land was owned in common, even chiefs had no authority to cede tribelet or village lands. Rarely, if ever, in United States history have so few persons without authority been assumed to have had so much, and given so much for so little in return to the federal government. The three Commissioners did not have the slightest idea of the actual extent of tribal lands of any group they met with.

Their orders were to secure Indian land title to California: and they managed to do this to their satisfaction by making treaties with some Indians and then dividing all of California west of the Sierra-Cascade crest into eighteen unequal cession areas which: happily: quite covered the entire region. If the Commissioners had made 12 treaties: the ceded areas would have been larger; if they had made 30 treaties the areas would have been smaller.

Taken all together, one cannot imagine a more poorly conceived, more inaccurate, less informed: and less democratic process than the making of the 18 treaties in 1851-52 with the California Indians. It was a farce from beginning to end: though apparently the Commissioners: President Fillmore and the members of the United States Senate were quite unaware of that. The alternative is that all of these were simply going through motions in a matter which did not in the slightest degree really concern them. What better evidence of the latter possibility do we require than the fact that the Senate rejected on July 8,1852 the very treaties it had itself authorized and appropriated funds for their negotiation on September 29, 1850.

The 18 California treaties are listed in the chronological order of their signing by Royce (1899). He provides a map (Royce: 1899: P1. CXIV) showing the area supposedly ceded by each treaty and the lands which were to be reserved "for the sole use and occupancy forever". For some earlier Indian treaties: without exception equally ludicrous and dishonest in their intent: see Heizer and Hester (1970), and for a general discussion of treaty-making with California Indians see Heizer ([1972]). 

Robert F. Heizer

Center for Advanced Study in the Behavioral Sciences

Stanford

Notes

brokenThe present reprint is taken from a copy in the author's possession of the documents and treaties originally "printed in confidence for the use of the Senate" in 1852 and ordered reprinted on January 19, 1905 the day after the injunction of secrecy was removed. No attempt has been made to correct the numerous inconsistencies and obvious misspellings in the official version o 1905. These are due in part, no doubt, to the difficulty of the GPO compositor to read the handwriting of Barbour, McKee and Wozencraft or the secretary of two of the Commissioners who, curiously enough, usually bore the same surname as the Commissioner for whom he was working. Nepotism, at least, in Gold Rush times California was not an issue.

daniel2Gibbs (1853:116) who accompanied McKee reports of the Northern Pomo near Willits: "We remained in this camp two days. A considerable number of men were brought in, but all attempts to assemble their families served only to excite their suspicions. In fact, the object of the agent, in the process of double translation through which it passed, was never fairly brought before them. The speeches were first translated into Spanish by one, and then into the Indian by another; and this, not to speak of the very dim ideas of the last interpreter, was sufficient to prevent much enlightenment under any circumstances. But the truth was, that the gentlemen for whose benefit they were meant by no means comprehended any possible motive on our part but mischief. That figurative personage, the great father at Washington, they had never heard of. They had seen a few white men from time to time, and the encounter had impressed them with a strong desire to see no more, except with the advantage of manifest superiority on their own part. Their earnest wish was clearly to be left alone."

A little further north Gibbs (op. cit.:ll9) notes that "Quite a number of Indians were assembled and presents distributed, but no treaty attempted; for our Clear Lake interpreter, although able to comprehend them, could not explain freely in turn." Among the Wiyot of lower Eel River Gibbs (op. cit.:130) notes, "As it had become evident that nothing could be effected with the Indians present, for want of interpreters: it was concluded to break up camp the next day, and proceed on." It would be interesting to know whether the several treaties negotiated by McKee were fully understood by all of the individuals signing as native representatives of their tribes.

It will be noted that not a single Indian actually signed his name -- without exception each made his "mark". It is probable that there were among the people who were treated with, on the assumption that they were the legal representatives of their groups, not a single literate individual.

plant1Each Camp where a treaty was made was named by the Commissioner in charge (or by the Commissioners acting as a board in the case of treaties "M" and unless} of course, the treaty was made at an already named place such as Bidwell's Ranch (treaty "G"), Temecula (treaty "K"'), etc.

The Daily Alta California (newspaper) for May 10, 1851 ran an article on the progress of the treaty making then going on based on interviews with two of the Commissioners (probably Barbour and Wozencraft). Referring to the treaty-session with the groups signing treaties "A" and "N", the article states, are parts of 2 or 3 tribes which would not come in to treat. Some of these is understood, are fractions of the Chow-chil-lies. The Commissioners find it impossible to treat with them, Major Savage with 3 companies moved against them, came up with them with only a river between, and had a skirmish, killing 2 or 3 of them". Reluctance of some groups to enter into treaties is attested by George Gibbs (1853:113).