History of the 18 Un-Ratified Treaties
Excerpts from THE EIGHTEEN UN-RATIFIED TREATIES OF 1851-1852 BETWEEN THE CALIFORNIA INDIANS
AND THE UNITED STATES GOVERNMENT by Robert F. Hiezer, 1972.
Posted on the website of the Konkow Valley Band of Maidu, 1185 18th Street Oroville, CA 95965: http://maidu.com
The complete text of Treaty O, agreed to by the Clear Lake and Sonoma Valley Indians,
is posted here: http://www.militarymuseum.org/CpLu.html
And our attempt to locate the land they would have been allowed to keep ... here.
Between 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 (George W. Barbour, Redick McKee and O. M. Wozencraft), whose appointments by President Millard Fillmore were authorized by the U.S. Senate on July 8, 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).
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 first and second treaties ("M" and "N") were negotiated by the Commissioners acting together as a board. But the urgency of the matter, the difficulties of treating with Indians over such a large area, and the slowness 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 Commisssioners 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"), one of McKee's treaties ("O"), one of Barbour's ("C"), and one of Wozencraft's ("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 forever held for the sole use and occupancy of said tribes of Indians", the tribal designations, native representatives and the American participants.
Some treaties 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 their 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 their trains through the state they made "Camps", sent out the word that the treaty-making party was anxious to talk with the local people, visited Indians in villages and invited them to attend a 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 group 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 1850-51 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 men were simply going through the 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.
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 .
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 ) 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.