Secret Article of the Treaty with the Creeks
United States [New York] August 4th 1790
The President of the United States states the following question for the consideration and advice of the Senate.1
If it should be found essential to a treaty, for the firm establishment of peace with the Creek Nation of Indians, that an article to the following effect should be inserted therein, will such an article be proper? vizt
The commerce necessary for the Creek nation shall be carried on through the ports, and by the citizens of the United States, if substantial and effectual arrangements shall be made for that purpose by the United States, on or before the first day of August, one thousand seven hundred and ninety two. In the mean time, the said commerce may be carried on through its present channels, and according to its present regulations.
And, whereas the trade of the said Creek nation is now carried on wholly or principally through the territories of Spain, and obstructions thereto may happen by war, or prohibitions of the Spanish Government.
It is therefore agreed, between the said parties, that in the event of any such obstructions happening, it shall be lawful for such persons as The P. of the U.S.2 shall designate, to introduce into and transport through the territories of the United States to the country of the said Creek nation, any quantity of goods, wares, and merchandize, not exceeding in value in any one year Sixty thousand dollars, and that free from any duties or impositions whatsoever, but subject to such regulations, for guarding against abuse, as the United States shall judge necessary; which privilege shall continue as long as such obstruction shall continue.3
DS, DNA: RG 46, First Congress, 1789–91, Records of Executive Proceedings, President’s Messages—Indian Relations; Df, in the hand of Tobias Lear, NNGL: Knox Papers; Df (incomplete), NNGL: Knox Papers; Df, NNGL: Knox Papers; Df, in the hand of Alexander Hamilton, NNGL: Knox Papers.
Lear’s undated draft of the secret articles differs from the receiver’s copy as follows: his first article was the one presented to the Senate on 4 Aug. 1790 and differs from it only in minor variations of punctuation and capitalization; his second article, not presented on that date, reads: “Second. The United States also agree to allow each of the great medal chiefs herein after named, a commission, a great medal with proper ornaments, and each one hundred dollars annually for themselves and the other beloved men of their towns respectively to wit—
|Of the upper Creeks||The chiefs of the Oakfulkees, Tuckabatchees, and the present Tallisee King of the half way house|
|Of the lower Creeks||The chiefs of the Cusitahs and Cowetas. And—|
|Of the Semanolies||The chief of Micasukie.”|
These articles were the first two of the six secret articles that were finally agreed upon by the parties and presumably presented to the Senate for ratification (NNGL: Knox Papers; Proclamation, 14 Aug. 1790, n.5).
Also in NNGL: Knox Papers are two other undated drafts of secret articles. The incomplete one reads: “the beloved Chief of the said nation shall also be constituted the Agent of the United States in the said nation, with the rank of Brigadier General and the pay of one thousand two hundred dollars per annum, on his taking the usual oaths required by law.
“Second—And the said Alexander McGillivray hereby stipulates to use his highest exertions to endeavor to cultivate the firmest friendship between the United States and the said Creek nation.
“Third—The United States agree to educate and clothe such of the Creek youth as shall be agreed upon, not exceeding four in number at any one time.”
The other draft reads: “secret. Article 1. In order to effect a consolidation of the interests of the United States and the Creek nation, it is hereby stipulated that Alexander McGillivray the beloved Chief of the said nation shall also be constituted the representative of the United States in the said nation, with the rank of Brigadier General and the pay of one thousand two hundred dollars per annum.
“Article 2. And the said Alexander McGillivray hereby stipulates to use his highest exertions to endeavor to cultivate the firmest friendship between the United States and the said Creek nation, and to take the necessary oaths.
“Article 3. The United States also agree to allow each of the great medal chiefs hereinafter named a commission, a great medal with proper ornaments, and each one hundred dollars annually for themselves and the other beloved men of their towns respectively to wit—
|Of the upper Creeks.||The chiefs of the Oakfuskies, Tuckabatchies, and the present Tallisee King of the half way house|
|Of the lower Creeks.||The chiefs of the Cusitahs and Cowetas.|
|And—of the Semanolies.||The chief of Micasukie.|
“Article 4. The United States agree to educate and clothe such of the Creek youth, as shall be agreed upon, not exceeding four in number, in any one given year.
“Article 5. The United States may appoint two Agents to reside, one in the upper and the other in the lower creeks—These persons shall assist in the attempt to civilize the indians and shall not in any degree be concerned in trade or the purchase of lands, but they shall have lands assigned them by the Creeks for cultivation for themselves and successors.” This final paragraph, marked “Public,” is crossed out. At the bottom of the page facing it appears an undated “draft of a message not sent,” according to Henry Knox’s docket (NNGL: Knox Papers; see n.1 below).
Hamilton’s draft, which is printed in Syrett, Hamilton Papers, description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends 26:548–49, is essentially the same as the receiver’s copy, except for the absence of the paragraph beginning “The commerce necessary.”
The external trade of the Creek nation was worth more to McGillivray than the annual figure of £10,000 a year that the 1789 Creek treaty commissioners estimated it to be (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 2:238). McGillivray’s prestige increased within the Creek confederacy in proportion to the quantity and quality of trade goods, especially guns, powder, and shot, he was able to acquire from the Europeans. His association with William Panton, the leading partner of the British firm of Panton, Leslie & Company, which enjoyed a Spanish monopoly of that trade, thus contributed to his political supremacy.
McGillivray’s position was far from secure, even though he signed the Treaty of Pensacola with Spanish officials in June 1784 (see Knox’s draft of “Minutes of Spanish treaty with the Creeks—for McGillivray,” 8 Aug. 1790, NNGL: Knox Papers). British and American traders were not content to let Panton, Leslie & Company enjoy their monopoly in peace, and the most successful interloper was William Augustus Bowles, who led a trading expedition to the Creek country in 1788. Bowles (1763–1805) was a Frederick Co., Md., adventurer who had first lived among the Creeks after he was cashiered from the Maryland Loyalist Corps that had been sent to Pensacola in December 1778. Although his 1788 expedition, which was assisted by métis trader John Galphin, was financially unsuccessful, Bowles gained much influence among the Lower Creek headmen and solicited official British assistance to remove McGillivray and the Spanish orientation of Creek foreign policy. Only because McGillivray realized that the imminent Anglo-Spanish war jeopardized his trade connections was he willing to consider alternative commercial arrangements with the Americans. He refused, however, to compromise his loyalty to Panton, Leslie & Company by accepting American traders on a permanent basis (see Samuel Ogden to Knox, 9 Aug. 1790, NNGL: Knox Papers; Wright, Bowles, description begins J. Leitch Wright, Jr. William Augustus Bowles: Director General of the Creek Nation. Athens, Ga., 1967. description ends 19–50; Caughey, McGillivray of the Creeks, description begins John Walton Caughey. McGillivray of the Creeks. Norman, Okla., 1938. description ends 24–26).
On 22 July 1790 GW signed into law two acts that concerned McGillivray and the Creek chiefs who had just arrived at the federal capital the previous day. One appropriated an additional $20,000 to defray the expenses of negotiating the Creek treaty and of “promoting a friendly intercourse, and preserving peace with the Indian tribes” (1 Stat., description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 136). The other had its origins in the president’s message to Congress of 12 Jan. 1790, which enclosed Knox’s 4 Jan. 1790 report containing the following recommendations of the 1789 Creek treaty commissioners: “That some uniform Plan of granting Permits to those who may be employed in the Indian Commerce, should be established by the Supreme Authority of the United States; This would be part of the Duty imposed upon the Superintendant, Agent or Commissary of Indian Affairs in the Southern Department. . . . An expedient of this sort is highly requisite to prevent Persons of bad Character from defrauding the Indians; from making still more unfavorable impressions upon the inimical Tribes; and from alienating the affections of the friendly Tribes” (ibid., 137; DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 2:240; see also Knox to GW, 4 Jan. 1790 and notes, GW to the U.S. Senate and House of Representatives, 12 Jan. 1790).
The president’s message and its enclosures were referred to a committee chaired by Jeremiah Wadsworth, who reported a bill on 30 Mar. 1790 to regulate trade with the Indians. After being recommitted in April, the bill was revised and presented the following month, but not debated by the House until 22 June. After the bill was amended by the Senate on 9 July, the House passed it on 19 July as “An Act to regulate trade and intercourse with the Indian tribes.” Speaker of the House Muhlenberg and Vice-President Adams both signed it on 20 July, and GW signed it into law on 22 July 1790 (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 5:984–85, 990–92).
The law, which was to last two years, stated: “That no person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a license for that purpose under the hand and seal of the superintendent of the department, or of such other person as the President. . . shall appoint for that purpose.” A licensee had to enter into a $1,000 bond for faithful observance of the regulations to be prescribed by the president, and the term of his license was limited to two years. Anyone convicted of attempting to trade without a license or of being found in Indian country with the usual trade goods would suffer forfeiture of those goods. Furthermore, “No sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States” (1 Stat., description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 137–38).
GW apparently asked the secretary of state about the implications of the new law on the negotiations then under way, for Jefferson gave the president his written opinion on 29 July 1790. It reads: “Colo. McGillivray, with a company of British merchants, having hitherto enjoyed a monopoly of the commerce of the Creek nation, with a right of importing their goods, duty-free, & considering these privileges as the principal sources of his power over that nation, is unwilling to enter into treaty with us, unless they can be continued to him. and the question is how this may be done consistently with our laws, and so as to avoid just complaints from those of our citizens who would wish to participate of the trade?
“Our citizens, at this time, are not permitted to trade in that nation. the nation has a right to give us their peace, and to withhold their commerce, to place it under what monopolies or regulations they please. if they insist that only Colo. McGillivray & his company shall be permitted to trade among them, we have no right to say the contrary. we shall even gain some advantage in substituting citizens of the U.S. instead of British subjects, as associates of Colo. McGillivray, & excluding both British & Spaniards from the country.
“Suppose then it be expressly stipulated by treaty, that no person be permitted to trade in the Creek country, without a licens⟨e⟩ from the President, that but a fixed number shall be permitted to trade there at all, & that their goods, imported for & sent to the Creek nation, shall be duty free. it may further be either expressed that the persons licensed shall be approved by the leader or leaders of the nation, or without this, it may be understood between the President and McGillivray that the stipulated number of licenses shall be sent to him blank, to fill up. a treaty made by the President with the concurrence of two thirds of the Senate, is a law of the land, and a law of superior order, because it not only repeals past laws, but cannot itself be repealed by future ones, the treaty then will legally controul the duty-act, and the act for licensing traders, in this particular instance. When a citizen applies for a license who is not of McGillivray’s partnership, he will be told that but a given number could be licensed by the treaty, and that the number is full. it seems that in this way no law will be violated, & no just cause of complaint will be given: on the contrary the treaty will have bettered our situation, tho’ not in the full degree which might have been wished” (DNA: RG 59, Miscellaneous Letters). The solution, as worked out by McGillivray and Knox, was the above document.
The provision for secrecy was undoubtedly McGillivray’s suggestion, as he desired to protect his current relationship with Spain for as long as possible. Spanish officials were well aware of his trip to New York and the reason for it. Although they had supplied the Creeks with arms and ammunition in 1786 and early 1787, by mid–1787 they recommended to McGillivray that he make peace with the United States, for they did not want him to draw Spain into a Creek-American war. The Nootka Sound crisis increased their caution as well as their desire to retain their control over the Creeks. Capt. Carlos Howard, provisional secretary of the captaincy general of St. Augustine, was sent to New York to keep an eye on McGillivray and to distribute further presents to the Creek chiefs. His presence in the federal capital undoubtedly had a moderating effect on the American negotiators (William Knox to Henry Knox, 14 July 1790, NNGL: Knox Papers; Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:80, 82–83).
1. GW had apparently considered also consulting the Senate again on the Georgia-Creek land dispute, as he had done the previous summer. Sometime between 4 and 7 Aug. 1790, Lear prepared for GW a draft of a presidential message to the Senate, parts of which derived from GW’s 22 Aug. 1789 message to the Senate. GW changed his mind, however, and never sent the message, although he did incorporate parts of it into his 7 Aug. 1790 message to the Senate that accompanied the final peace treaty (see GW to the U.S. Senate, 22 Aug. 1789 and notes, Knox to GW, 7 Aug. 1790 and notes, and GW to the U.S. Senate, 7 Aug. 1790 [second letter]).
Lear’s undated draft of the message never sent to the Senate reads: “On the 22nd of August 1789 I stated to the Senate, the importance of effecting treaties with the Southern tribes of Indians and particularly with the Creek nation—I also stated the obstructions which appeared to oppose themselves to a treaty with the Creeks, and I requested and received the advice of the Senate on certain principles arising out of the statement which were to govern in forming a treaty with the said Creeks.
“The great difficulty which then opposed the formation of a treaty appeared to be the possession of the Oconee lands so called, the State of Georgia having had the said lands surveyed and divided among certain description of its citizens.
“The Creeks now in this City, for the sake of accommodation, and certain other considerations which will be stated to the senate, are ready to cede the said Oconee lands in the utmost latitude claimed by Georgia—But, they absolutely refuse to cede certain lands to the eastward of a new temporary line to be drawn from the forks of the Oconee and Oakmulgie rivers and thence in a South-West direction until it shall strike the most southern part of the stream called St Mary’s river, mentioned in the treaty made by Georgia at Galphinton in the year 1785.
“The quality of the land to the eastward of the said temporary line, and between the same and the old line from the Altamaha is stated to be generally barren and impracticable, with the exception of some swamps on the margin of the rivers which under improvement would make rice swamps—But at the same time the Creeks say that it is their most valuable winter hunting grounds, and that they will not relinquish it.
“As the boundary now is the only circumstance upon which an entire agreement may not be formed, it seems proper at this stage of the business, in order to save future embarrassments to decide upon that subject—I therefore request the advice of the Senate on the following questions.
“Is the opinion of the late commissioners considering the circumstances under which it was formed respecting the treaties between Georgia and the Creeks, and compared with the report of former commissioners and other evidence of such a nature as to require the United States to insist upon the temporary line from the forks of the Oconee and Oakmulgie to the St Mary’s as an ultimatum?
“shall a treaty be formed including the Oconee lands, according to the following boundary—to wit—
“The boundary between the citizens of the United States and the Creek nation is and shall be from where.” At this point in the draft is the phrase in Knox’s hand: “va⟨r⟩iati[o]n as in the treaty” (NNGL: Knox Papers).
2. “The P. of the U.S.” was later inserted by Secretary of the Senate Samuel A. Otis in a space left blank in the original, after the Senate resolved “that the blank in the said article be filled with the words ‘The President of the United States’” (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 2:87 and note 48).