The new Americans who settled the "new world" took control of their own destiny and prevented conquest by British, French, Spanish, or other world empires. Native American Indians were conquered by force; and religion, as well as horses and money, was used as a tool to pacify them before and after confiscating their land.
From the beginning the government of the United States of America developed a special relationship with Indian tribes. Treaties were first made with "independent nations" and later with "domestic dependent nations." Congress stopped making Indian treaties in 1871 but continued to regulate Indian affairs. The point is the same: because of the special constitutional status given treaties, as a contract between nations, "no part of any treaty has been held unconstitutional by the Supreme Court" (The Oxford Companion to the Supreme Court of the United States, 1992, Kermit L. Hall, ed., p. 878). Through treaty power and the assistance of authorized frontier administrators, the United States sometimes used soldiers, missionaries, traders, and teachers as a means of taming the savages and eliminating problems related to expansion of government territory. For example, in 1785 the Continental Congress specifically set aside land in the western territory for Indians who were "friends to the cause of America" and who had been driven from their former settlements during the war for independence. The land was promised "to these Christian Indians by the Congress prior to the declaration of independence, and since the close of the revolutionary war" because of "their meritorious services during that war" (American State Papers. Documents, Legislative and Executive, 1834, 3:615) and amounted to compensation for services rendered. In 1787 the United States was selling western land and instructed "that the board of treasury except and reserve out of any Contract they may make . . . the property of the said reserved land" and that it be placed in trust with a society of Moravian Brethren which existed for the purpose of "civilizing the Indians and promoting Christianity" (Journals of the Continental Congress 1774-1789, 1936, 33:429-430). In 1798 Congress issued land grant patents in accordance with a 1796 "act regulating the grants of land appropriated for military services, and for the Society of the United Brethren for propagating the Gospel among the Heathen" (notice that the organization's name is not the same as an endorsement of policy by the United States in regard to religion). Later sessions of Congress extended the United Brethren's trusteeship to these land grants--with some related legislation signed even by President Jefferson who was certainly not going to object to continuing these contractual agreements made by previous administrations. As John Leland said, "all treaties are the supreme laws of the land. If it should be conceded, too, that there is a clash between the provision of the constitution and the treaties made with the Indians, it would be rather ungenerous to blame the present administration for treaties made before the administration began" (The Writings of John Leland, L. F. Greene, ed., reprint edition, 1969, p. 612).
In 1822 the United Brethren trustees admitted failure in their objectives to manage the land or convert the Indians--"only nineteen or twenty persons" remained upon the land (American State Papers. Documents, Legislative and Executive, 1834, 2:377). The United Brethren returned the ten thousand acres and the trusteeship back to the United States for $6,654 and certain parcels of land upon which church buildings, parsonages, and cemeteries existed.
No American President saw the need for early and rapid acquisition of territory more than did Thomas Jefferson. "Jefferson always had his eyes on the prize of cheap land as the key to American freedom and economic independence" (Thomas Jefferson, Willard Sterne Randall, 1993, p. xviii). Jefferson expressed his eagerness in a private letter (February 27, 1803) to William H. Harrison:
I may with safety give you a more extensive view of our policy respecting the Indians. . . . Our system is to live in perpetual peace with the Indians, . . . To promote this disposition to exchange lands, which they have to spare and we want, for necessaries, which we have to spare and they want, we shall push our trading uses, and be glad to see the good and influential individuals among them run in debt, because we observe that when these debts get beyond what the individuals can pay, they become willing to lop them off by a cession of lands. At our trading houses, too, we mean to sell so low as merely to repay us cost and charges, . . . In this way our settlements will gradually circumscribe and approach the Indians, and they will in time either incorporate with us as citizens of the United States, or remove beyond the Mississippi. . . . Should any tribe be fool-hardy enough to take up the hatchet at any time, the seizing the whole country of that tribe, and driving them across the Mississippi, as the only condition of peace, would be an example to others, and a furtherance of our final consolidation.
Combined with these views, and to be prepared against the occupation of Louisiana by a powerful and enterprising people, it is important that, setting less value on interior extension of purchases from the Indians, we bend our whole views to the purchase and settlement of the country on the Mississippi, from its mouth to its northern regions, . . . The Kaskaskias being reduced to a few families, I presume we may purchase their whole country for what would place every individual of them at his ease, and be a small price to us, . . . I have given you this view of the system which we suppose will best promote the interests of the Indians and ourselves, and finally consolidate our whole country to one nation only; . . . The crisis is pressing: whatever can now be obtained must be obtained quickly. The occupation of New Orleans, hourly expected, by the French, is already felt like a light breeze by the Indians. You know the sentiments they entertain of that nation; under the hope of their protection they will immediately stiffen against cessions of lands to us. We had better, therefore, do at once what can now be done.
I must repeat that this letter is to be considered as private . . . You will also perceive how sacredly it must be kept within your own breast, and especially how improper to be understood by the Indians.
Therefore, shortly after negotiating the Louisiana Purchase, President Jefferson had no problem on August 13, 1803, signing a treaty agreement negotiated by William Henry Harrison, governor of the said territory and superintendent of Indian affairs, with the Kaskasia Indians:
Article 1st. The Kaskasia tribe, . . . finding themselves unable to occupy the extensive tract of country which of right belongs to them and which was possessed by their ancestors for many generations, the chiefs and warriors of the said tribe being desirous of procuring the means of improvement in the arts of civilized life, and a more certain support for their women and children, have, for the considerations hereinafter mentioned [emphasis added], relinquish . . . and cede to the United States all the lands in the Illinois country, which the said tribe has heretofore possessed, . . . reserving to themselves however the tract of about three hundred and fifty acres . . . , which they have always held and which was secured to them by the act of Congress on the third day of March, one thousand seven hundred and ninety-one, and also the right of locating one other tract of twelve hundred and eighty acres within the bounds of that now ceded, which two tracts of land shall now remain to them forever.
Art. 2d. The United States shall take the Kaskasia tribe under their immediate care and patronage, and will afford them a protection as effectual against the other Indian tribes . . .
Art. 3d. The annuity heretofore given by the United States to the said tribe shall be increased to one thousand dollars, . . . The United States will also cause to be built a house suitable for the accommodation of the Chief . . . And whereas, the greater part of the said tribe have been baptised and received into the Catholic church to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion, who will engage to perform for the said tribe the duties of his office and also to instruct as many of their children as possible in the rudiments of literature. And the United States will further give the sum of three hundred dollars to assist the said tribe in the erection of a church. The stipulations made in this and the preceding article, together with the sum of five hundred and eighty dollars, which is not paid or assured to be paid for the said tribe for the purpose of procuring some necessary articles, and to relieve them from debts which they have heretofore contracted, is considered as a full and ample compensation for the relinquishment [of all their lands in the Illinois country] made to the United States" (Public Statutes at Large of the United States, 1848, 7:78-79).
In other words, for a thousand dollar annuity and another thousand dollars for a three hundred dollar church building and a temporary agreement of one hundred dollars a year for seven years for them to pay their Catholic missionaries, the United States absorbed their land. This was a contract with the Kaskasia Indians, not with the Catholic Church; that is, the terms of the agreement (including money to pay the missionaries and construct a building) are a part of what the Indians wanted in payment for their land.
On August 18, 1804, Superintendent of Indian Affairs Harrison negotiated a treaty between the United States and the Delaware tribe of Indians:
Article 1. The said Delaware tribe, for the consideration hereinafter mentioned [emphasis added], relinquishes to the United States forever, all their right and title to the tract of country which lies between the Ohio and Wabash rivers, . . .
Art. 2. The said tribe shall receive from the United States for ten years an additional annuity of three hundred dollars, which is to be exclusively appropriated to the purposes of . . . promoting their civilization. Suitable persons shall be employed at the expense of the United States to teach them to make fences, cultivate the earth . . . The United States will cause to be delivered to them . . . , horses, . . . cattle, hogs . . . to the amount of four hundred dollars. (Public Statutes at Large of the United States, 1848, 7:81).
In other words, unlike the Kaskaskia who were apparently concerned about the by-and-by, the Delaware were concerned about the here-and-now and asked for fence builders rather than missionaries and for livestock rather than a church building. Regardless, the United States got the land; and what the United States gave to the Indians, in whatever form, was contractual consideration or payment for land. You will see in both agreements the language "for the consideration hereinafter mentioned," which is the legal terminology for establishing a contract. Grants of land and the payment of money for services to finance fence builders or missionaries were always in terms of compensation for land yielded to the United States. Such acts were never a policy statement by the United States to promote the Christian religion; they were the use of money, livestock, and/or missionaries to compensate, pacify, and reward the Indians as the price of peace and as payment for Indian land.
In specific response to the real issue put forth regarding the significance of this essay, treaty law which applied to Indians who were members of independent nations (American Indians did not become citizens until 1924) is not to be confused with law which did or does relate to American citizens. Agreements or contracts made by the President and Senate with foreign or American Indian nations have always stood on their own. Further, the United States cannot impose its laws, including the Bill of Rights, into the rest of the world--only within its own borders; thus, in 1990 (Smith v. Oregon) the Supreme Court of the United States correctly ruled that neither American Indian citizens nor their religious practices are above the laws of American society. Indian nations still exist in a special treaty relationship with the United States, but individual American Indians are now responsible as citizens. Therefore, use of the above examples of United States agreements which included money that would be used for religious purposes, as stipulated in treaties or contracts with Indian nations, is not relevant to the significance of the Religion Clauses of the First Amendment; and, in contrast to the few above mentioned irrelevant treaty situations which were contracts designed to compensate Native American Indians for services rendered and for their land, many examples can be cited in which legislation appropriating funds of or utilizing the government of the United States for the use and support of religion unrelated to treaties with Indian nations have been ruled unconstitutional. A relevant example to the contrary would be a grant of land or appropriation of funds to religious institutions specifically for the purpose of government promotion and an establishment of religion unrelated to Indian nations and treaty law.
Now that I have your attention and just for fun and your reading enjoyment--after having read all of the above detail, let the record be clear about the great white fathers who helped create the United States of America: Founding Father Benjamin Franklin was a deist, as was President George Washington (he refused to take communion in the Episcopal churches which he attended); President John Adams was a unitarian, as was President Thomas Jefferson (he even refused to issue Thanksgiving Day proclamations). And, it was President James Madison (who also refused communion in the Episcopal churches which he attended) who set the Congress straight in February 1811 when he vetoed two bills it had passed--one relating to land donated by the United States to a Baptist society for a church building and the other relating to governmental authority being vested in an Episcopal Church "to provide for the support of the poor and the education of poor children of the same." Both, said Madison, violated the Establishment Clause. You can read the real story about America's separation of religion and government in the book America's Real Religion by Gene Garman--and I thank you for your support!
Copyright 1998 Gene Garman