Equal Footing

In 1796, the Southwest Territory became the first U.S. territory to become a state, joining the union as Tennessee. This new state promptly used its newfound status as a sovereign on “equal footing” with existing states to challenge the persistence of federal authority, especially over land and Indian affairs. A series of collisions followed: over ownership of the public domain; over William Blount’s odd scheme to use his supposed influence in Indian country to challenge federal power; and, above all, over the federal government’s attempt to survey the boundary of the Cherokee Nation, which threatened to dispossess white land claimants. Ultimately, the federal government preserved its formal authority even as it gave Tennessee what it wanted—a seemingly Pyrrhic victory that had important precedential consequences. In particular, when part of the Northwest Territory sought to become the new state of Ohio in 1802, the federal government sought to protect its authority. Most importantly, it decided for the first time to attach conditions to the new state’s admission that guaranteed federal land ownership, a practice that quickly became a constitutional norm; the new state also tacitly accepted continued federal authority over the state’s Native peoples. The result was that the federal government’s power to adjudicate property and jurisdictional conflicts survived despite state challenge; in the process, the federal government ironically became the most visible defender of the earlier, multipolar order against these states’ assaults.

Epilogue

Three federal systems coalesced from the ad hoc practices of governance in the Northwest and Southwest Territories—over land, Indian affairs, and the territories themselves. The foundations for the federal land system laid in these early struggles persisted and survived through the Civil War and beyond, as federal adjudication of land rights expanded. The federal government also codified its earlier experiments in compensation, formalizing its payments to Natives and whites even as it also continued to pay for brutal, even genocidal violence against Native peoples from the federal treasury. Finally, even Congress continued to use conditional admission to try to control newly admitted states, the territorial system entrenched the expectation that the plural sovereignty and ownership of the borderlands was temporary; statehood represented the moment when these preexisting claims supposedly passed away. Statehood also helped doom the flawed vision that the federal government would serve as a neutral arbiter between Natives and whites. Rather, statehood gave the former territories perhaps the most effective way yet to make claims on the federal government. As these new states increasingly became the federal government—in Congress, in the cabinet, and in the presidency—they turned their goals into federal law. This result occurred within the federal lands, where states successfully bent federal land policy to serve their expansionist aims, and in Indian affairs, where state representatives successfully persuaded the federal government to back their assertions of sovereignty against the compelling sovereignty claims of the Cherokee and Native Nations in the struggle known as Removal. This effectiveness at exploiting federal power allowed these former territories to rapidly remake these former borderlands to satisfy their long-standing settler colonial aspirations.

The Land Company Experiment

The first major federal effort to remake territorial property came through large sales to land companies. This chapter recounts this history through the stories of three land companies: the Tennessee Company, the Ohio Company, and the Miami Company. The Tennessee Company represented what the federal government hoped to avoid. Created by speculator Zachariah Cox, the Company purchased millions of acres of land in Georgia’s Yazoo sale. Cox then spent the next decade challenging federal authority, threatening Native nations, bamboozling investors with dubious title, and asserting his own sovereignty in the southern borderlands. When it created the Ohio and Miami Companies in the Northwest Territory, the federal government sought to avoid such outcomes. The two companies, headed by Rufus Putnam and John Cleves Symmes, promised to distribute title systemically while also preserving peace with Native peoples. Yet this supposedly mutually beneficial relationship did not work out. Both companies felt abandoned and betrayed by the federal government when war with the Northwest Indian Confederacy ensued. Yet, like the Tennessee Company, the Ohio and Miami Companies also both succumbed to the lure of profit on bare promises of future title, creating still more property confusion and uncertainty that fell to the federal government to resolve. The experiment’s failure led Congress to reject large-scale land sales as a viable solution to the territories’ property uncertainty.

Expenses of Sovereignty

When criminal law and command failed, federal officials came to rely on federal finance to try to secure peace between Natives and U.S. citizens, as this chapter depicts. Both Native and white claimants demanded that the federal government compensate them for the violence they suffered at each others’ hands. Increasingly, the federal government did so, paying both Natives and whites for the constant murders, horse thefts, and abduction of enslaved human property that plagued both federal territories. Still more money went to the territories to satisfy Native leaders’ expectations for what federal officials called “presents” and to fund the expensive military “protection” that territorial citizens demanded. Federal officials reluctantly spent these increasingly large sums of money to secure the doubtful allegiances of these borderlands residents; their goal was to foster dependence on the federal government. Arguably, they failed. Native leaders espoused a gendered rhetoric of poverty and weakness, but they successfully extracted federal funds precisely because of their considerable power. Constitutionally, the territories were dependencies of the United States, but territorial citizens rejected any suggestion of subordination, demanding vast sums for militia actions—even when at odds with federal law—as part of the federal government’s obligation to protect its citizens. In the process, both sets of claimants relied on the federal government as the venue to make claims and redress grievances. But only Natives were tagged with the dependent label even as their white neighbors proved far more effective at extracting federal largesse, prefiguring later dynamics in the rise of the national welfare state.

Laws of War and Peace

Alongside individual murders and crimes, the federal government also confronted in the territories a long-standing borderlands law governing organized violence. Both Natives and whites there conducted larger-scale, often brutal expeditions against each other, often with little or no formal authorization from their ostensible governments. The federal government sought to replace this seemingly pathological culture of violence by imposing a definition of war drawn from the newly adopted U.S. Constitution that made the federal government, and particularly Congress, the sole arbiter and source of legitimate violence against Native nations. The effects of this federal assertion of supremacy differed in the two territories. In the Northwest Territory, the conflict known as the Northwest Indian War expanded earlier practices of borderlands violence under federal auspices. Citizens of the Southwest Territory demanded the same, and nearly got it, in what this chapter terms the war-that-nearly-was. What actually followed in the Southwest Territory instead was an intense, polyvocal legal contest between territorial citizens and officials, Congress, the Washington administration, and the Creek, Cherokee, and Chickasaw Nations over the meaning of the categories of war and peace. Yet again, federal officials failed to establish federal supremacy, but they did succeed in insinuating federal law into territorial life and Indian country, including disputes between Native nations.

Sources of Title in the Territories

This chapter explores the intersection between the rabid market for land in the early United States and the territories’ property pluralism—the existence of multiple, conflicting sources of rights to ownership. The chapter focuses on the debate over three particularly significant sources of title: purchases from Native nations; state land grants under the system of indiscriminate location; and occupancy, commonly known in early American law as preemption. The collision between these different sources with unclear validity made ownership in the territories highly uncertain and spawned conflict. The federal government attempted to reform territorial property, deeming some sources of title legitimate while barring others, but both formal and informal law hampered these federal efforts to produce clarity of ownership.

Introduction

This introduction outlines the central argument of Federal Ground. Federal authority in the Northwest and Southwest Territories, the book contends, stemmed less from foundational texts like the Northwest Ordinance than from the demands of territorial residents, who looked on the federal government not as an institution but as a resource and successfully pushed it to serve their ends. The introduction explores the contrast between the formal, nearly unchecked authority that the U.S. Constitution granted the federal government in the territories and the reality that these supposed territories were Native homelands and borderlands where imperial powers had come and gone with little change in control. It then grapples with the amorphous nature of federal government in the territories, divided among cabinet officials, local territorial officers, and key intermediaries like Governors Arthur St. Clair and William Blount, and recounts how these diverse officials believed themselves constrained to try to understand the territories’ inhabitants. It also explores the difficult question of how to measure federal state power in the early republic, contrasting the fiscal-military state with the alternate model of an adjudicatory state, in which territorial citizens turned to federal law to claim rights. It notes the benefits of considering the two territories together and previews the individual chapters and their arguments.

The Rise of Federal Title

The failure of federal efforts to reform title meant that federal officials in the territories found themselves, unwillingly, adjudicating conflicting claims to ownership, often in ad hoc, unplanned fashion outside of courts. This chapter describes three sets of adjudications of territorial land rights. The first involved conflicting assertions of different Native nations to ownership, as federal officials, as part of their effort to “extinguish” Native title, had to decide which nation owned which land. The effort led them to try to understand Native land laws in an effort to parse these claims. The second required wading into the land rights of the French habitants of the Illinois Country, where territorial officials similarly attempted to understand past French land law to confirm preexisting claims to title. The third concerned veterans of the Revolutionary War, who were promised land in the U.S. Military District in the Northwest Territory. Frequently defrauded out of their rights, these holders of the so-called bounty lands appealed to the U.S. Secretary of War to protect their title. In all three cases, the result was that federal officials distilled the territories’ plural sources of ownership into a single federal title issued under federal authority. This decades’ worth of difficult and unheralded legal and administrative work became the foundation for the federal land system, especially when the Harrison Land Act of 1800 codified the resolution to long-standing heated debates about the public lands.

Federal Sovereignty

In the territories, the federal government confronted what it regarded as endemic violence between Natives and U.S. citizens based on long-standing racial animosity. At the urging of Secretary of War Henry Knox, the federal government sought to establish itself as a neutral arbiter between both sides, a vision of what the chapter calls federal sovereignty expressed in the Trade and Intercourse Acts. These laws sought to distinguish and separate “Indian country” from “ordinary jurisdiction,” and they established a federal criminal regime to punish both Natives and U.S. citizens who committed crimes against the other, in an effort to replace practices of retaliation. Yet this effort to establish federal sovereignty largely failed. In part, federal officials misunderstood territorial realities, where Natives and whites were entangled by economic and social relationships that could not be easily divided. But they also misunderstood the jurisdictional and institutional limitations within federal law. In particular, their approach converted the question of justice for Natives into a debate over the scope of federal authority in the territories, in which territorial citizens strongly resisted what they regarded as heavy-handed federal control.