TREATY BETWEEN THE ENGLISH AND THE POWHATAN INDIANS, OCTOBER 1646
In 1646, two years after Opechancanough ordered coordinated attacks on English settlements that killed about 500 people, the government of the colony and Necotowance, on behalf of the Powhatan tribes, negotiated a treaty that ended hostilities between the remnant of the Powhatan and the English Virginians. Later in the year, the General Assembly enacted the treaty into law and adopted other laws to enforce its terms.
The Treaty of 1646 placed Indians in eastern Virginia under the control of the King of England, which, in theory, provided them protection from other tribes and also from encroaching settlers. The treaty imposed many restrictions on the Indians. It confined them to land north of the York River, prohibited them from interfering with English settlement south of that river, and required them to communicate with the government by messengers while dressed in distinctive clothing. The treaty also required the Indians to return all hostages, including “negroes,” and turn in their guns, and it required “as an acknowledgmt & tribute for such protection, the said Necotowance & his Successors are to pay unto the King’s Governor the Number of twenty beaver skin’s att the goeing away of Geese yearely.”
From that time on in Virginia and also elsewhere in the colonies, governments and Indian leaders negotiated treaties that allowed people of European origin or ancestry to settle in areas that Indians had formerly occupied. Often a part of concluding periods of open hostility or organized warfare, the treaties established a legal doctrine that Indians did not bear the same relationship to the colonial governments that free white men enjoyed. In some respects, colonial laws and practices treated Indians as foreign nations. In other respects, as when Indians resided in or near European settlements, they were not accorded the full rights of free white men. In the case of the Treaty of 1646, the affected tribes were known as tributary nations because they were required to pay tribute to the victors who had imposed the terms of the treaty. As a result, Indians were exempted from taxation, which in the popular mind was associated with the annual tribute of beaver skins paid to the government.
The Constitution of the United States embodied some of those same attitudes toward Indians residing within its boundaries. Article I, Section 2, in providing for the counting of people for the purposes of assigning direct taxes and the number of members each state would have in the House of Representatives, exempted “Indians not taxed” from the population entitled to representation. Article I, Section 8, empowered Congress to regulate commerce “with foreign nations, and among the several states, and with the Indian tribes,” treating Indian tribes as if they were sovereign, foreign countries. The authorization in Article II, Section 2, for the president to negotiate, with the advice and consent of the Senate, and make treaties was understood therefore to include Indian tribes as well as foreign nation states. George Washington, who was president of the Constitutional Convention in 1787, understood the clause in that way and assigned agents to negotiate treaties with Indian tribes while he was the first president of the United States.
The aforementioned constitutional distinctions revealed that the founding generation of white men did not regard Indians, even those residing within long-settled communities, as equal with white men or possessing the same rights. The status of Indians became even more complex after the new federal government concluded its own treaties with western Indians. Those treaties created different relationships with the federal government for western Indians than eastern Indians had negotiated with individual state governments. The constant westward expansion of the settlements by white Americans and the recurring warfare led to more than a century of treaties and actions by the federal government, unlike any agreements it made or laws it adopted for the government of either free or enslaved people.
Not even the ratification of the Fourteenth Amendment in 1868, which defined as citizens “all persons born or naturalized in the United States and subject to the jurisdiction thereof” conferred full civil rights and liberties on American Indians. Indeed, the legal status of Indians in the United States remains unique among residents of the country in that they have rights independent of the Constitution and laws that apply to all other people, and they have lived under restrictions unlike those imposed on any other people, or enjoyed hunting, fishing, and ceremonial rights that state and national laws regulated or prohibited to all other people.
This treaty is recorded in an eighteenth-century transcription of a Virginia Council and Assembly record book that Thomas Jefferson acquired in 1776 when he bought the library of Richard Bland, a House of Burgesses member and collector of historical documents. The Library of Congress acquired this book and other records pertaining to Virginia history in 1829 from Thomas Jefferson’s grandson.
Savage, Mark. “Native Americans and the Constitution: The Original Understanding.” American Indian Law Review 16, no. 1 (1991): 57–118.
Pommersheim, Frank. Broken Landscape: Indians, Indian Tribes, and the Constitution. New York: Oxford University Press, Inc., 2009.
Utter, Jack. American Indians: Answers to Today’s Questions. Norman: University of Oklahoma Press, 2001.