TREATY OF 1846

ANNOTATIONS

Articles of a treaty made and concluded at the Methodist Mission, in the Kansas country, between Thomas H. Harvey and Richard W. Cummins, commissioners of the United States, and the Kansas tribe of Indians.

^{The treaty articles were not negotiated in a neutral location; instead they were drafted and finalized in a Christian mission, a particularly European American institution. The church and the teachers and missionaries who worked there were funded in part by the U.S. government. They were paid to undertake a specific goal: to assimilate Indigenous people into Euro-American culture and to curtail Indigenous belief systems. The mission and the U.S. government worked in tandem, their intention to contain Indigenous peoples physically, within bounded reservation spaces, and eliminate them culturally, by replacing Indigenous worldviews with Euro-American norms. Claiming Indigenous peoples were culturally “inferior” was a long-term justification for colonizing their resources and assaulting their culture.}

^{In general, U.S. treaties are nation-to-nation compacts, agreements between relatively equal governments, as seen, for example, in contemporary climate accords or trade treaties. However, as the non-Indigenous population in the newly founded United States grew, this nation-to-nation power dynamic shifted radically. By the nineteenth century, most treaties with Indigenous nations were designed by the U.S. government to aggressively acquire land and force Indigenous peoples to assimilate into U.S society. With this in mind, the site of this meeting highlights how political and cultural strategies worked hand-in-hand to try and unravel Indigenous ways of life.}

^{Notably, this Methodist mission site was a mile away from Chouteau and Cyprian’s trading post (Unrau 130). Charles Chouteau, who served as a witness to the treaty, stood to profit significantly from government annuities (annual payments from the U.S. government in exchange for Indigenous land) which would likely be spent at his store. The same could be said for Seth Hays, an Indian trader who was one of the earliest white settlers on the land of the Kanza retained after this treaty. Hayes would be a key player in the Kanza’s forced expulsion, just thirteen years later, from the land promised to them “forever” in the treaty he now signed. This was a pattern used by U.S. officials across the continent: missionaries, traders, and land agents often spearheaded additional relocations/land loss/expulsions and profited from it.}

^{While the U.S. delegates are named and given titles that show their authority to negotiate treaties, the Kanza representatives are not specifically named, but referred to collectively. The authors of the treaty did not clarify who was negotiating on behalf of the Kanza or whether they had the authority to do so within their community. In most Indigenous communities, including the Kanza, leadership was at the town or village level rather than the governing model of the U.S. where there was a single, recognized head of the nation. Governing was often decentralized and agreements arose from a consensus-based democracy in that clans and people had a voice in considerations that affected the community. Though none are among the signers of the treaty, women also would have had political input among the Kanza. Therefore the number of Kanza signatories agreeing to the treaty is likely an underrepresentation within their system of organized leadership. Further, the signers were under immense pressure from both without and within given the myriad of concerns facing the Kanza in 1846}

ARTICLE 1.

The Kansas tribe of Indians cede to the United States two millions of acres of land on the east part of their country, embracing the entire width, thirty miles, and running west for quantity.

^{The language of the treaty is worth considering. Both the current and historic definitions of “cede” are “to give way; to yield or surrender something.” Notably the article does not state that the Kanza agreed to sell their land to the United States government, but, instead, that they yielded it. Given that the Kanza had no choice but to relinquish vast swathes of their homelands, some of which were already invaded by Euro-American settlers, the language of the treaty agreement made apparent the power imbalances that undergird it. Further, given that treaties are often employed to mark the terms of negotiation that end a war, the language of “ceding” invokes the structure of victor and vanquished peoples, with the victor ultimately controlling the terms of the agreement.}

^{This land cession reduced Kanza land from a two-million acre reservation to only 256,000 acres. With the land loss demanded by this treaty, the Kanza were now left with just a fraction—under 13 percent--of the land they held after the Treaty of 1825.}

ARTICLE 2.

In consideration of the foregoing cession, the United States agree to pay to the Kansas Indians two hundred and two thousand dollars, two hundred thousand of which shall be funded at five per cent., the interest of which to be paid annually for thirty years, and thereafter to be diminished and paid pro rata, should their numbers decrease, but not otherwise—that is: the Government of the United States shall pay them the full interest for thirty years on the amount funded, and at the end of that time, should the Kansas tribe be less than at the first payment, they are only to receive pro rata the sums paid them at the first annuity payment. One thousand dollars of the interest thus accruing shall be applied annually to the purposes of education in their own country; one thousand dollars annually for agricultural assistance, implements, &c.; but should the Kansas Indians at any time be so far advanced in agriculture as to render the expenditure for agricultural assistance unnecessary, then the one thousand dollars above provided for that purpose shall be paid them in money with the balance of their annuity; the balance, eight thousand dollars, shall be paid them annually in their own country. The two thousand dollars not to be funded shall be expended in the following manner: first, the necessary expenses in negotiating this treaty; second, four hundred dollars shall be paid to the Missionary Society of the Methodist Episcopal Church for their improvements on the land ceded in the first article; third, six hundred dollars shall be applied to the erection of a mill in the country in which the Kansas shall settle for their use, it being in consideration of their mill on the land ceded in the first article. The balance to be placed in the hands of their agent, as soon after the ratification of this treaty as practicable, for the purpose of furnishing the said Kansas Indians with provisions for the present year.

^{“Two hundred and two thousand dollars” was intended compensation for the Kanza people for their confinement to a twenty-miles square reservation in the Neosho River Valley that encompassed where modern-day Council Grove, Kansas is today. The Kanza were to receive $2,000 up front, and then would receive the interest from the remaining money over the course of thirty years.}

^{Notably, the Kanza did not actually receive $200,000, as discussed below. Instead, the U.S. government promised to pay the Kanza the interest on those funds for thirty years. The balance of the funds was put into a trust for the tribe controlled by the U.S. government. The tribe was not in direct control of the trust and more often than not, unable to use it. Once placed in the trust, this money was often misused or stolen. Click here to access more information on how the United States government mismanaged multiple Native American trust funds. (https://www.fcnl.org/updates/2016-09/native-american-trust-fund-massive-mismanagement)}

^{Further, as will be addressed below, the treaty required the Kanza to spend portions of this money in ways the U.S government found acceptable. These demands, common in treaties with other Indigenous nations, exemplified the legal paternalism of the U.S. government, dictating what was “best” for Indigenous peoples and nations, while simultaneously denying the Kanza full payment for their land. Again, we can turn to the Marshall Trilogy as a legal precedent for U.S. government paternalism: in the Cherokee Nation v Georgia (1831), the Supreme Court held that, though sovereign, Indigenous nations’ relationships to the U.S. were like a “ward to its guardian.” This paternalistic attitude permeated the language and terms of nineteenth-century treaties between the United States and Indigenous nations, including the Treaty of 1825 with the Kanza.}

^{$200,000 in 1846 is approximately $6,936,467 today. Click here to access more resources on inflation rates over time [https://www.officialdata.org/us/inflation/1846?amount=200000]. While this may seem like a large amount of money, the clear winner in the negotiation was the U.S. government. According to the Kaw Nation and scholars today, “the 1846 treaty required the sale of the 2 million-acre reservation to the government for just over 10 cents an acre.” (Kaw Nation, “Cultural History, Pt. 2,” https://kawnation.com/?page_id=4463)}

^{The U.S. received massive amounts of land for a very undervalued price. As noted in a 1911 U.S. government report about Kaw Nation claims examined by the Congressional Committee on Indian Affairs, “It is plain these Indians ceded to the United States at various times large areas of land for which they were not adequately paid, and perhaps not paid as proper dealing on the part of the Government required under the treaties” (“Claim of the Kaw Indians”). The comments of the Congressional Committee encompass all three of the Kanza land cession treaties—1825, 1846, and 1859--as well as the inadequate payment for the land they left in their forced 1872 relocation to Oklahoma.}

^{How much of the promised funds actually made it to the Kanza people is also debatable. Indian Bureau employees were notoriously corrupt, skimming off the top of these treaty agreements. Trading posts also profited, overcharging Indigenous customers for goods and services. Notably, as discussed above, the owners of trading posts were often co-signers on land treaties. In this case, the Chouteau trading family, celebrated as the “founders” of Kansas City, stood to profit significantly from this treaty.}

^{In this treaty article, the interest payment on the promised $200,000 compensation was to be paid “pro rata” after thirty years. “Pro rata” means that something will be paid “proportionally” or “in the appropriate or specified proportion.” Here, that means payments would depend on the population of the nation, which was at that time rapidly declining, given the invasion of U.S. settlers and the resulting decline of game, competition for natural resources, and accompanying starvation that then made the Kanza vulnerable to the spread of diseases. In this perspective, it was in the government’s best interest for the Kanza to lose members because the U.S. would then pay less money for the land they purchased.}

^{Twenty percent, or one-fifth, of the Kanza’s annuity funded settler efforts to forcibly acculturate the tribe into U.S. society including Euro-American approaches to agriculture and education. The treaty effectively made the Kanza pay for the tools that would be used to dismantle their culture. Mission education was based on European traditions and U.S. society’s behavioral and cultural expectations that stood in opposition to Kanza worldviews and lifeways. Children in such schools were forced to speak English, learn Christian belief systems, and take on white manners of dress and behavior. They were expected to abandon all aspects of their culture and larger structures of belief. By the time of the 1846 treaty, the Kanza already had a history of successfully resisting such assimilation attempts: multiple efforts by the Methodists to compel the Kanza to take up Christianity and send their children to mission schools had failed in the face of the Kanza peoples’ determination to maintain cultural sovereignty. The Kanza did not want these schools. The designation of treaty funds for “the purposes of education,” then, was yet another attempt not only to undercut the Kanza’s ability to make decisions about what to do with their own money, but also represented an attack on their entire way of living. In spite of the Kanza’s feelings about the missions and U.S. systems of education, funds from the Treaty of 1846 would, in part, be used to construct the Kaw Mission, which was completed in 1851 by the Missionary Society of the Methodist Episcopal Church South. Much like the previous missionary attempts, the Kaw Mission, too, would fail in the face of Kanza people’s cultural resilience (though it remained open for the children of local white settlers). But its presence and this treaty provision demonstrated the increasingly unequal power dynamics between the U.S. and the Kanza.}

^{As discussed in the Treaty of 1825 and in the “Context” section above, Kanza women were traditionally in charge of agriculture. However, the U.S. government, in accordance with European understandings of gendered divisions of labor, issued farming equipment to men and expected them to attend to the farming and cease their seasonal buffalo hunts. Here again, then, we can recognize how the terms of the treaty violated the very bedrock of Kanza cultural practices, which was one of the goals of U.S. assimilation practices. The Kanza had always farmed, but such agricultural work was the domain of women. As well, the Kanza practiced both farming and migratory hunting and so were not sedentary farmers. Before U.S. colonization, the entire village would travel in the summer. This was a time to restock food, hides, and other items necessary to everyday life and trade. Further, as Kansas State anthropologist Lauren Ritterbush notes, “The summer excursion was also a social affair for the community, an activity that had been followed for many decades. In July 1724, de Bourgmont observed the Kanzas (300 men, 300 women, 500 children, 300 dogs, and a number of horses) travel from their village along the Missouri River in present day northeastern Kansas to the western plains to hunt bison” (Ritterbush, “Visit to Blue Earth Village” 15).}

^{This section of the treaty also privileges non-Indigenous understandings of “advancement” in agriculture, thereby ignoring the fact that the Kanza women had been successfully farming and gathering in the region for centuries. The challenge to Kanza farming was not “advancement” or skill, it was the invasion of Americans.}

^{In this example, $400 of treaty compensation was distributed to the Methodist Episcopal Church for the buildings that had been constructed in their ongoing attempts to assimilate the Kanza. Government funded missionary buildings from the Treaty of 1825, were deemed “improvements” by the U.S. government. Here, we see the Kanza had to reimburse the Methodist Church for their assimilation efforts, which the Kanza rejected. In other words, the Kanza had to pay for their own colonization. Again, this is a pattern that can be seen across treaties between many Indigenous nations and the U.S. Articles like this make it clear that treaties were used by the U.S. to coerce and colonize Indigenous peoples, rather than serving as an agreement between relative sovereign nations.}

^{The money that was supposed to support the Kanza for the winter of 1846 would not be administered by them. Instead, a government appointed agent would control the money. Once again, the treaty creates systems of U.S. government control on this independent nation in ways that would be unheard of in treaty deals with foreign nations. Here again, we see the pattern of paternalism that permeated the U.S. government’s agreements with Indigenous nations and peoples. This structure allowed the U.S. government to continue manipulating Kanza interests to achieve U.S. goals. Indian agents were political appointees who rarely had relevant experience for their jobs. Because the federal government was much smaller than it is today, one of the major ways to enter politics was by joining the Indian service and thus political considerations, rather than Kanza welfare, often determined who served in these positions.}

^{The final irony of this treaty stipulation lies in its use of the term “in their own country.” On one hand, this statement recognizes the Kanza as a separate political entity with sovereignty over land, but on another, this choice of phrasing ignores the fact that the entire region was once “their own country.”}

ARTICLE 3.

In order that the Kansas Indians may know the west line of the land which they have ceded by this treaty, it is agreed that the United States shall, as soon as may be convenient in the present year, cause the said line to be ascertained and marked by competent surveyors.

^{The language in this article places the responsibility of respecting treaty boundaries on the Kanza without addressing how these boundaries will be known or enforced for settlers, many of whom were interested in settling on, or already squatted on Kanza land. U.S. and local political officials had little incentive to enforce treaty boundaries among their constituents as their political offices depended on votes from these settlers.}

^{The timing of surveys could be critical. Historian Ronald Parks also describes how squatters occupied prime land designated for Kanza individuals in the 1825 treaty precisely because delays in surveying left questions about what parts of the land belonged to the Kanza nation. Further, even when treaty boundaries were known, settlers often used false claims of confusion to rationalize their choice to squat on prime pieces of Kanza land. Without a specific time listed in the treaty of 1846, the Kanza nation was left at the whims of government officials to name the official boundaries of their reserve. And they had to wait a decade: the survey was completed on July 24, 1856.}

^{Surveying errors were a concern: “[i]n 1847, the U.S. government did, in fact, mistakenly establish the northern three-tenths (120 square miles) of the Kanza Reservation on land already reserved for the Shawnee...” (Parks, The Darkest Period 67). All surveys were conducted by U.S. government representatives. Keeping in mind that U.S. presence in the region only began in earnest in 1804, the Kanza, who had lived in the region for generations, were clearly much more knowledgeable of the region. The Kanza would have better met the criteria of “competent surveyors.”}

ARTICLE 4.

The Kansas Indians are to move from the lands ceded to the United States, by the first article of this treaty, by the first day of May, 1847.

ARTICLE 5.

As doubts exist whether there is a sufficiency of timber on the land remaining to the Kansas, after taking off the land ceded in the first article of this treaty, it is agreed by the contracting parties, that after the western line of the said cession shall be ascertained, [and] the President of the United States shall be satisfied that there is not a sufficiency of timber, he shall cause to be selected and laid off for the Kansas a suitable country, near the western boundary of the land ceded by this treaty, which shall remain for their use forever. In consideration of which, the Kansas nation cede to the United States the balance of the reservation under the treaty of June 3, 1825, and not ceded in the first article of this treaty.

^{“As doubts exist whether there is a sufficiency of timber on the land...”}

^{This article is intertwined with the previous and the ongoing question of where the Kanza would rebuild their towns. The details of the article suggest that the Kanza recognized that U.S. officials would knowingly put them in danger. Here we see the Kanza representatives trying to protect the people of their nation by appealing to the government’s stated goal to have the Kanza adopt U.S. models of farming. In this article, the Kanza raised serious doubts about the status of the land upon which the U.S. government wanted them to relocate. In an interview for our project, historian Ronald Parks, explained that this article is included because of concerns raised by Kanza leaders: “During the negotiations, the Kanza chiefs objected and said, ‘well, there's no hard wood, there's no right kind of timber out there.’ The Indians are suggesting that there's a lack of availability of suitable timber for them to be able to build the fences to keep the livestock from running over their gardens. These are horticultural people. And so that's the objection. So, [the treaty negotiators] write in one of the articles of the treaty, ‘There will be an investigation of that part of the country to determine if there's suitable timber out there. If not, then we will relocate your villages somewhere close to that area. As soon as we can find the timber and the water, and the conditions where you can move into this new kind of existence. . .’” (Parks, personal interview, March 31, 2021)}

^{However, there may be more to this story than meets the eye. Parks continues, “Here's the problem with that whole scheme. First of all, there was suitable timber in that area. The surveys of 1859 and 1860 and other observers when the first settlers came into that area [indicated] there were large groves of Burr Oak and Walnut along some of the streams--Pipe Creek, Salt Creek, Solomon River--they did have suitable timber. The Indians, who had hunted there for generations, would have known that. The white people wouldn’t have had a clue. But the problem was, that would have put the Kanza . . . out there on their own and they would have been surrounded by hostile tribes, their enemies. . . ." Parks goes on to suggest that the real situation here would have been that the Kanza would have been in constant danger of conflict with antagonistic Indigenous nations. By centering their terms of negotiation around agriculture, the Kanza were likely attempting to create an argument that they knew would be more persuasive to representatives of the U.S. government. (Parks, personal interview, March 31, 2021)}

^{Like the Treaty of 1825, the land the Kanza retained in the Treaty of 1846, predictably, did not remain the Kanza’s “forever.” Thirteen years later, the Treaty of 1859 further reduced the Kanza’s 256,000 acres to 80,000 acres . By 1872, the U.S. government would force the Kanza to leave their homelands entirely and relocate to Indian Territory (present-day Oklahoma) despite the Kanza’s vehement protests. Given the overt aims of non-Indigenous settlers to claim Kanza land and the U.S. government’s support of such efforts, it seems as though there was no intention to honor this element of the document. This promise, too, was a common feature of U.S. Indian policy: Indigenous land ownership was temporary and forced relocations were repeated.}

ARTICLE 6.

In consideration of the great distance which the Kansas Indians will be removed from the white settlements and their present agent, and their exposure to difficulties with other Indian tribes, it is agreed that the United States shall cause to reside among the Kansas Indians a sub-agent, who shall be especially charged with the direction of their farming operations, and general improvement, and to be continued as long as the President of the United States should consider it advantageous to the Kansas.

^{An Indian sub-agent was an individual who lived either on Indigenous land or very close to it and functioned as an intermediary between the tribe and the U.S. government. As a part of their job, these agents (at least in theory) were meant to uphold stipulations in treaties and represent the Kanza's interests, and this was what Kanza sub-agent John Montgomery attempted to do in 1856 when he tried to force squatters to vacate Kanza land. According to Parks, “Montgomery was arrested by territorial Kansas officials on charges of arson, abandoned by the military, condemned by Kansas newspaper editors, ignored by his supervisors in the Office of Indian Affairs, and threatened by a mob with tarring and feathering” (The Darkest Period, 64). Montgomery was an example of an Indian agent who attempted to fulfill his job duties and uphold the treaty’s legal stipulations. But state and federal officials, as well as the local communities around him, undermined his efforts. This, too, was common across the U.S.}

^{Even though this anecdote took place 10 years after the finalization of this treaty, it shows a pattern of behavior. The sub-agent mentioned in this article, and the treaty in general, were supposed to help preserve the interests of the Kanza. The sub-agent, and these stipulations more broadly, were meant to protect them from experiencing continued invasions of their land, yet settlers still trespassed, illegally settled on, and used Kanza resources. This is how settler colonialism operated and it culminated in the Kanza’s expulsion from their ancestral homelands by the U.S. government in 1872.}

^{Everything presented in this treaty is from the perspective of U.S. government representatives. There is no mention of circumstances being “advantageous” or approved by the Kanza nation’s chiefs or any of their members; all of these articles have phrases that signify that the President of the United States has the final word on any decision regarding the treaty, which presents a clear imbalance of power and respect between the two entities.}

ARTICLE 7.

Should the Government of the United States be of opinion that the Kansas Indians are not entitled to a smith under the fourth article of the treaty of June 3, 1825, it is agreed that a smith shall be supported out of the one thousand dollars provided in the fourth article for agricultural purposes.

In testimony whereof, Thomas H. Harvey and Richard W. Cummins, Commissioners, [and] the Chiefs and Principal Men of the Kansas tribe of Indians have, this the 14th day of January one thousand eight hundred and forty-six, set their hands and seals at the Methodist Kansas Mission.

Th. H. Harvey,

Rich. W. Cummins, Commissioners.

^{By 1846 blacksmiths, craftsmen who shaped metal into tools and other useful objects, had become essential to life on the Great Plains. As Lauren Ritterbush explains,}

^{Trade increased into the eighteenth century, especially while the French maintained Fort Cavagnial in Kanza territory between 1744 and 1764. It was during this period that Native production of stone tools and pottery diminished as items of European and American manufacture such as metal knives, pots or kettles, arrow points, awls, axes, and hoes became readily available. (15)}

^{The Kanza, like all Indigenous peoples, regularly changed and adapted. For example, here, iron cookware replaced pottery because of its durability and practicality. The concept of Indigenous people as somehow primitive or less able to adapt to technological shifts is therefore clearly refuted by such practical adaptations. Importantly, the Kanza peoples’ use of iron pots for cooking or hoes for agriculture did not undermine their cultural beliefs or traditions—they could adapt their ways of cooking, take up the use of particular farming implements, or adopt new ways of dress without losing their identity, spiritual beliefs, or Kanza-specific worldviews. This was part of the Kanza’s centuries-long trade networks, where they regularly consumed goods that improved their lives. And once Europeans colonized North America, that included blacksmith tools.}

^{This article suggests that a dispute had emerged about if blacksmith services were guaranteed in the Treaty of 1825. In order to resolve that dispute, this treaty guaranteed blacksmith services, ensuring that the Kanza retained access to this important resource.}

^{Biographies of non-Native treaty signers: https://bit.ly/463gs8f}

Witnesses:

^{(To the names of the Indians are added their marks.)}