U.S. Congress

Excerpt from "An Act to Regulate Trade and Intercourse with the
Indian Tribes"

Passed on July 22, 1790
Published in The Public Statutes at Large of the United States of America,
edited by Richard Peters, 1850

Through the late 1780s, Native American relations west of the Appalachians took different courses in the region north of the Ohio River and the area south ofthe river. By 1786, the states holding claims to the northwestern lands had given up their claims to the central government. These were now public lands under control of the U.S. government. To the south of the Ohio River, it was a different story. The future state of Kentucky remained part of Virginia, Tennessee did not form a territory separate from North Carolina until 1789, and since 1783 Georgia had expansive land claims stretching toward the Mississippi River, including the present-day states of Alabama and Mississippi. The Southern states continually clashed with Native Americans over control of these western lands.

The U.S. government had very limited powers over state actions, so the national Native American policy through the 1780s focused more on the Northwest Territory. There the government could more readily acquire land from Native Americans and sell it to settlers to bring in much-needed revenue. However, the Native Americans were not willing to sell, and by 1789 their hostile resistance had stopped the spread of settlement. The Confederation government had no money to send a military force to resolve the issue.

Creation of a new national government in 1789 under the U.S. Constitution provided an opportunity for a change in direction in Native American policy. Native American affairs in the administration of President George Washington (1732–1799; served 1789–97) fell to Secretary of War Henry Knox (1750–1806). In 1789, Knox began to shape a policy that would dominate Native American relations for the next thirty years and influence it for the next two centuries. Knox argued for a policy that would treat Native Americans fairly and pay them, however cheaply, for the lands on which they still resided. He returned to the earlier European colonial policies recognizing the Native Americans' "right of soil" and the responsibility of the United States to peacefully purchase that right. In addition, Knox argued that to take the lands by military force would be not only immoral but expensive.

Through Knox's influence, Congress passed "An Act to Regulate Trade and Intercourse with the Indian Tribes" on July 22, 1790. Congress recognized that the United States could not afford ongoing military confrontations and therefore sought to make U.S. expansion as orderly and fair as possible. Native American tribes would be dealt with as foreign nations, and their lands would be purchased through treaties ratified by the U.S. Senate. The new Native American policy sought to (1) protect Native American rights to land by establishing boundaries separating Native American and American settlements; (2) establish the U.S. government as the only entity that could acquire land from tribes (thereby prohibiting states and private individuals from acquiring the land); (3) give U.S. Congress sole authority to regulate trade with the Native Americans, so as to control interaction between Native Americans and non–Native Americans; and (4) punish crimes committed by white Americans and Native Americans before such acts escalated into broader conflicts or even war. The act basically established rules of conduct for non–Native Americans in Native American country, giving them some standards for land acquisition, trade, and general behavior.

Things to remember while reading excerpts from "An Act to Regulate Trade and Intercourse with the Indian Tribes":

• The act assigned a government official, called a superintendent, to oversee tribal relations, including the issuance of licenses to U.S. traders. This gave the government official the power to fine traders who violated the conditions of the licenses and punish traders who did not obtain a license.
• The superintendent had the authority to relax the restrictions on certain interactions with Native Americans, such as in cases where a Native American settlement enjoyed peaceful relations with surrounding U.S. settlements.
• Because Congress intended to resolve conflicts before they became wars, the act described the penalties and criminal process for U.S. citizens who committed crimes against Native Americans in Native American country. The main purpose of the act was to avoid costly armed conflicts.
• In general, the act created the idea of "Indian country," places where Native American customs prevailed and states had no legal authority.
• The act was temporary, giving Congress the flexibility to make changes in Native American policy every few years.

Excerpt from "An Act to Regulate Trade and Intercourse with the Indian Tribes"

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall be permitted to carry on any trade orintercourse with the Indian tribes, without a license for that purpose under thehand and seal of the superintendent of the department, or of such other person as the President of the United States shall appoint for that purpose; which superintendent, or other person so appointed, shall, on application, issue such license to any proper person, who shall enter intobond with one or moresureties, approved of by the superintendent, or person issuing such license, or by the President of the United States, in the ... sum of one thousand dollars, payable to the President of the United States for the time being, for the use of the United States,conditioned for the true and faithful observance of such rules, regulations and restrictions, as now are, or hereafter shall be made for the government of trade and intercourse with the Indian tribes. The said superintendents ... shall be governed in all things touching the said trade and intercourse, by such rules and regulations as the President shall prescribe. And no other person shall be permitted to carry on any trade or intercourse with the Indians without such license . ... No license shall be granted for a longer term than two years. Provided nevertheless, That the President may make such order respecting the tribes surrounded in their settlements by the citizens of the United States, as to secure an intercourse without license, if he may deem it proper.

Section 2. And be it further enacted, That the superintendent, or person issuing such license, shall have full power and authority torecall all such licenses as he may have issued, if the person so licensed shalltransgress any of the regulations or restrictions provided for the government of trade and intercourse with the Indian tribes, and shallput in suit such bonds as he may have taken, immediately on thebreach of any condition in said bond: Provided always, That if it shall appear on trial, that the person from whom such license shall have been recalled, has notoffended against any of the provisions of this act, or the regulations prescribed for the trade and intercourse with the Indian tribes, he shall be entitled to receive a new license.

Section 3. And be it further enacted, That every person who shall attempt to trade with the Indian tribes, or to be found in theIndian country with such merchandise in his possession as are usuallyvended to the Indians, without a license first had and obtained, as in this act prescribed, and being thereof convicted in any court proper to try the same, shall forfeit all the merchandise so offered for sale to the Indian tribes, or so found in the Indian country, which forfeiture shall be one half to the benefit of the person prosecuting, and the other half to the benefit of the United States.

Section 4. And be it enacted and declared, That 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 havingthe 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.

Section 5. And be it further enacted, That if any citizen or inhabitant of the United States, or ofeither of the territorial districts of the United States, shall go into any town, settlement or territory belonging to any nation or tribe of Indians, and shall there commit any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians, which ... would be punishable by the laws of such state or district, such offender or offenders shall be subject to the same punishment, and shall beproceeded against in the same manner as if the offence had been committed within the jurisdiction of the state or district to which he or they may belong, against a citizen or white inhabitant thereof.

Section 6. And be it further enacted, That for any of the crimes or offencesaforesaid, thelike proceedings shall be had for apprehending, imprisoning orbailing the offender, as the case may be, and forrecognizing the witnesses for their appearance to testify in the case, and where ... the witnesses shall be in a district other than that in which the offence is to be tried, for the removal of the offender and the witnesses ... to the district in which the trial is to be had, as ... directed for any crimes or offenses against the United States.

Section 7. And be it further enacted, That this act shall be in force for the term of two years, and from thence to the end of the next session of Congress, and no longer.

What happened next ...

The Indian Trade and Intercourse Act was renewed regularly, and new concerns were steadily added. For example, the 1802 version restricted the flow of alcohol into Indian country. The act was finally made permanent in 1834.

Knox and Washington continued working on improving Native American policy. A policy of "civilization" became a key element of U.S.–Native American relations and was added to the 1793 version of the act. Knox argued that expansion of white settlement would actually benefit Native Americans by introducing them to farming practices. Knox and Washington believed Native Americans lived at a lower stage of development than whites but were capable of rapid improvement. They wanted to bring civilization to the Native Americans by teaching Native American men the methods of agriculture and teaching Native American women spinning and weaving. U.S. leaders believed "civilizing" the Native Americans would enhance the reputation of the United States around the world and make the Native Americans into Americans. This would be better for the nation than a reputation of destroying Native American populations through military conquest. The prospect that American farmers might not accept Native American farmers as neighbors was not considered. Under the 1793 revised act, Knox could appoint government agents to assist the Native Americans in the transition to a farming way of life.

U.S. leaders hoped the new national policy laid out in the act would allow for an orderly expansion of U.S. settlements through formal negotiation and prevent aggressive actions by states and frontiersmen. They hoped the Native Americans would gradually become "civilized" as this orderly process unfolded.

The U.S. government's moderate Native American policy, which lasted from 1790 to 1815, would be severely tested in various ways. Native Americans resisted relinquishing their lands peacefully; hostile territories and states wanted control over Native American lands within their boundaries; and impatient frontiersmen wanted rapid Native American removal. Knox and Washington had hoped the new policy would avoid war. However, hostilities continued through the next twenty-five years. In addition, by the 1820s, it became apparent that the "civilization" program was not working.

Did you know ...

• The federal government adopted a policy of "peace and purchase" with the tribes, meaning the government would acquire Native American lands through peaceful purchases through treaties. The national leaders did not consider the possibility that the Native Americans would resist selling their lands and would often rather fight than give up the land for money.
• It was assumed that cession (surrender) of Native American lands was inevitable. U.S. leaders thought that as frontier settlements crowded the boundaries of Native American country, the increasing scarcity of game and native foods would make the Native Americans want to sell their lands and move farther west, away from white settlers.
• Henry Knox, who was Washington's secretary of war and in charge of Native American relations, was also the secretary of war under the Confederation during the mid-1780s, when harsher policies toward the Native Americans failed.

Consider the following ...

• Why did Congress wish to limit interactions, such as trade, between Native Americans and U.S. citizens?
• Why do you think the U.S. national leaders were concerned about world opinion on how they dealt with Native American issues? Consider that the leaders were eager to promote their new form of government.
• Why did Congress consider Native American relations to be an important topic that needed to be addressed during its first session?

Intercourse: General interaction.

Hand and seal: Signed written approval.

Bond: Agreement.

Sureties: Financial institutions.

Conditioned for: Guaranteeing.

Recall: Cancel.

Transgress: Violate.

Put in suit such bonds as he may have taken: File a claim in court for the bond money paid by the trader.

Breach: Violation.

Offended against: Violated.

Indian country: Places where Native American customs prevailed and states had no legal authority.

Vended: Traded.

The right of pre-emption: An earlier claim.

Either of the territorial districts of the United States: The Northwest Territory and the Southern Territory, which were divided by the Ohio River.

Proceeded against: Taken to court.

Aforesaid: Previously described.

Like proceedings: Same process.

Bailing: Paying money to release a prisoner until his trial.

Recognizing: Identifying.

Directed: Required by federal law.

For More Information

Books

Peters, Richard, ed. The Public Statutes at Large of the United States of America. Boston: Charles C. Little and James Brown, 1850.

Prucha, Francis P. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press, 1986.

Washburn, Wilcomb E., ed. Handbook of North American Indians: History of Indian-White Relations. Vol. 4. Washington, DC: Smithsonian Institution, 1988.

Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press, 1987.