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Introduction: A Great Shout

The Indian guide was trying to get the sailors’ attention before it was too late. They were docked by a waterfall, waiting for the Indian king to arrive. The sailors were confident. They had feasted with the king the day before, and their captain, Christopher Newport, had “kyndly imbraced” him, confirming “a leauge of fryndship.”¹ This next meeting would go well, they were sure. But the Indian guide was worried. The night before, the sailors had departed without offering the formal goodbye required by Powhatan diplomacy. They could be excused that once—they were new, after all. But the guide had to show them how to behave this time around, or risk offense to the king.

Raising his voice over the steady roar of the falls, the guide made a quick demonstration of proper protocol. It was simple. When the king arrived, they were to shout in unison. When he left, they were to shout again, bringing things to a close. The shout, a simple rhythmic cadence, was easy to learn. It felt familiar to the sailors, who did the same thing for important people in England. When the king finally appeared, they followed the guide’s example, shouting a happy welcome. And later, when he turned to go home, they did it again, “two severall times,” and the Indians “answer[ed] [their] shout with gladnes in a friendly fashion.”² In some ways, the day had not gone well. The king had politely rebuffed their request to travel farther upriver, and the sailors were no longer so confident. But the shouting seemed to leave things on good terms. As they sailed home to the newly built fort at Jamestown, they were sure the king was their friend.

At some point in the days following the meeting at the falls, Gabriel Archer, the secretary of the settlement venture, sat down to compose an account of the trip. This letter was crucial to their fortunes. Investors in London were eager to know how they had gotten along with nearby Indians, and it was Archer’s job to inform them. Archer was equally aware that other people might read his letter, too—rival English adventurers, for example, who were ready to stake their own claims, or, more frightening, Spanish spies, who might intercept a copy in London, and were eager to see England’s colonies destroyed. To stave off these threats, it was important that he describe the journey upriver in a way that clearly established English rights to the land.

Curiously, though, Archer’s letter did not resemble what most Europeans would have recognized as a legal document of any kind—much less a land claim. There were no references to the New World as a waste space, void, or empty territory waiting to be taken by the first Christians who found it. Instead, there was a detailed account of the many “kynges” who ruled the area.³ And there were scant descriptions of forts, houses, or fences (the way Europeans usually showed ownership). Such details were pushed aside in favor of an almost theatrical account of diplomacy among the Indians, with feasting, dancing, and other ceremonies taking center stage. Perhaps most surprising was the way Archer documented Indian treaties, like the league with the king. There were none of the Latin formulas so familiar in European treaties, no lists of witnesses, no signatures—not even the x-marks found in treaties between the English crown and illiterate Irish clansmen. In a startling departure from European conventions, Archer offered an account of treaty making on Indian terms, pointing to the exchange of shouts and other indigenous rituals as proof of friendship between Newport and the king.

English colonists in the first decades of the seventeenth century spent a surprising amount of energy documenting the political life of the people whose territory they invaded. They described Native leaders as kings, and referred to tribal polities as nations and empires.⁴ They detailed Native ceremonies, set down the speeches of Native leaders, and reported on the proceedings of tribal councils. Most of all, when it came to recounting treaties, they often chose to describe Native ways of making and marking agreement, preferring stories of feasts, shouting, and tribute to the somber signing rituals of European diplomacy.

This book tries to explain why Archer and so many other English colonists were interested in coastal treaties, and why they so often focused on Native rituals in their writings home. That colonists cared about Native politics at all may seem like a surprising thing to assert, given what we know about how things turned out. An important body of scholarship has shown that colonists imposed their own political and legal systems on Native people.⁵ In what follows, there will be much to confirm this story. In early North America, as in other places of encounter, the law and its rituals were undoubtedly instruments of conquest. But as Archer’s document so vividly shows, English colonists were far from dismissive of coastal treaty practices. One reason for their interest was the simple desire to survive. Newport and his group were outnumbered, as were most English colonists in the first years after arrival, and settling on anything other than Native terms was out of the question. But this does not explain why writers like Archer described coastal rituals in such detail in letters home, at times even choosing Indian protocols over their own. Understanding that, I will argue in this book, requires looking beyond the riverbank to the palaces, halls, and council rooms where European crowns negotiated rights to American territory.

Though Archer focuses on the politics of the coast, his report also reflected dramatic shifts in European legal systems in the decades before English settlement. The English set sail for the New World at a time of great uncertainty about international law, or what they called the law of nations. While European princes had for many centuries viewed themselves as members of a res publica Christiana, an order of Christian crowns answering to the pope, over the course of the sixteenth century many declared their autonomy from papal authority and asserted their sovereignty, or absolute power, over territory, peoples, and foreign affairs. These challenges to papal authority extended to the New World, as northern crowns contested the pope’s donation of America to Spain and Portugal and formulated their own protocols for conquering land across the seas. In this book, I argue that treaties with Native Americans were one way the English crown and its colonists sought to demonstrate possession of foreign territory. In ancient legal traditions, there were many precedents for conquering land with treaties. According to early modern glosses of ancient Roman texts, a sovereign power could lay claim to territory through a treaty with its inhabitants. These treaties, which had to represent consensus ad idem, a “meeting of the minds” or voluntary agreement between parties, served as proof that a claim was pacified, or under control. I will argue here that English colonists publicized treaties with Native Americans precisely in order to advertise this kind of possession. They used treaties to show other Europeans that the English crown had brought American territory under control. And while this was no doubt an imperialistic strategy, having as its goal the conquest of land, I will argue that it led to a profound irony, one that powerfully shaped English colonial writing. When the English pointed to treaties with Native peoples as evidence of possession, Native words, gestures, and other ways of marking agreement suddenly became highly charged evidence in international legal disputes, even as Natives themselves lost their land and power.

Today’s global powers rarely dispute the form of treaties. International accords are embodied in written texts. News coverage of treaties often depicts heads of state bent over official documents, poised to ratify them with the sweep of their pens. Such rituals date to the early modern period, when princes or their representatives concluded leagues and pacts by signing embossed documents.⁶ The Treaty of London (1604), which brought an end to the Anglo-Spanish War (1585–1604) and opened the way for English colonization, was signed first by James I (who also swore an oath to abide by its articles) and then ratified by Philip III in a separate ceremony. The treaty was widely publicized in paintings and publications, which many of the Virginia colonists probably encountered.⁷ Set beside such grand acts of state, the treaty with the river Indian king hardly seems to merit comparison. However, while the early seventeenth century was a time of great agreements between princely powers, it was also a time of great uncertainty about the nature of sovereignty and the proper mode of its expression, especially when it came to the New World. Though European princes had well-established protocols for making treaties with each other, the application of the law of nations to supposedly heathen peoples—who were believed to be incapable of taking oaths or signing their names—led to widespread controversy over how to ratify treaties. While many authorities believed that pagans were not subjects of the law of nations, and that their political rituals had no capacity to register consent to a binding agreement, others, including Spanish friars and Protestant jurists, debated the possibility that all the peoples of the world were governed by natural law, and could make treaties according to their own customs, however strange or savage those might seem.⁸

Existing scholarship on treaties has tended to focus on the eighteenth century, when colonists had more power, and frontier treaties looked like their European counterparts, with articles and signatures.⁹ In the early period, however, there was little uniformity in treaty making.¹⁰ English and Native people ratified treaties with chants, shouts, gestures, and feasts; they exchanged gifts, trade goods, animals, weapons, and hostages (including women and children); they marked the landscape with footpaths, inscriptions, and monuments; and they engaged in many other kinds of shared practices that combined elements from Native and European traditions. English treaty records reflected the diversity of coastal politics. Until the middle of the seventeenth century, colonists rarely set down Indian treaties in signed documents (it was true, after all, that Indians could not sign their names or take oaths, at least as Europeans understood such things). They put them instead in genres better suited to portraying the politics of the coast. Like Archer, they recorded treaties in diplomatic relations, writing of feasts and solemn orations. Other times, they described them in land deeds, receipts of purchase, or other commercial genres, and the boundaries between trade, treaty, and purchase were (often intentionally) blurred. Still other treaties were printed in histories or evangelical exhortations, and became a medium for arguing about politics or religion at home. Nor was the English idea of a treaty limited to formal acts of ratification, like shouting or feasting. Colonists also wrote about the informal behaviors of their Native partners, their facial expressions, their postures, their negotiating strategies, their emotions, and anything else that might bear upon the question of consent. All these forms of expression, formal and informal, could be called on to prove Native acceptance of the English presence, and therefore English control of territory.

Early Anglo-Native treaty documents were never simply rote accounts of political transactions, set down according to some preexisting formula. They were rhetorical documents, crafted to meet the needs of particular constituencies (English and Native), and bundled with claims about land, sovereignty, and trade. Europeans used treaties for a variety of conflicting ends. In the early years of Virginia settlement, the joint-stock companies that financed colonial ventures cited treaties to show the crown and potential rivals that they had the Chesapeake Bay under control, and had reached a settlement with Powhatan, the paramount chief who commanded most of the nearby tribes. However, Spanish diplomats and spies eagerly disputed Virginia colonists’ reports of peace on the frontier, and rival English adventurers put forward counter-narratives of treaty negotiations that challenged the truth of reports like Archer’s. After the 1620s, the Spanish no longer posed a serious threat to England’s North American settlements, but English colonists were acutely aware of their Dutch and French rivals, and they continued to dispute land rights with each other, submitting treaty documents in petitions to the king. In the middle of the seventeenth century, Native treaties factored into contests between colonists, traders, and religious dissenters, all of whom pointed to treaty agreements to support various kinds of appeals to the crown. This transatlantic traffic in treaties was enormously consequential. A convincing treaty document could persuade the crown (and international onlookers) of the integrity of a claim. A broken treaty could cost colonists the king’s support, and invite threats from belligerent rivals at home and abroad. Indeed, as I will show at the end of this book, the Massachusetts Bay Colony’s failure to respect Indian treaties was one reason the English crown reviewed its charter and asserted direct control over its government after the Restoration.

Even though most of them could not write, Native people used treaties just as adeptly as the newcomers. Indeed, I will argue here that Anglo-Native treaties only make sense if we view them as part of a broader world of political communication that included oral and gestural politics as well as the written word. Scholarship has sometimes portrayed settlers and Natives as standing on opposite sides of a communication divide. The settlers were creatures of writing, while the Natives lived in an oral culture, and thus became the victims of written treaties they could not understand. The victim part of this story is certainly true. Many Native groups were destroyed, and others nearly so, through airborne pathogens to which they had no immunity, military assaults that left them divided and overwhelmed, and the slower genocide of territorial dispossession. But Natives were not helpless or ignorant. Especially in the first decades of settlement, they eagerly sought alliances with colonial governments to gain an advantage over rival tribes and chiefdoms. Many prospered for decades from such relationships before falling prey to hardening colonial policies or the encroachments of squatters.¹¹ In extending these alliances, Native people often worked through transatlantic diplomatic channels.¹² While few acquired alphabetic literacy in the seventeenth century, it was not always necessary to read or write in order to influence transatlantic politics. Native people learned early on that settlers were transmitting news to distant places where powerful kings resided. They sought to discern which colonists were in favor with these faraway powers and to shape the flow of information and authority to their benefit. They told stories to English secretaries and scriveners and gave objects to English travelers for delivery to the king as tokens of alliance. They also traveled, addressing English leaders in person. Of course, Native Americans could not communicate or travel across the Atlantic without intermediaries, and Europeans publicized the Native point of view only when it was useful to them. But this does not mean that Natives never worked through transatlantic channels to advance their own agendas. They did, often to powerful effect.

The Law of Nations and Native America

When the English crown and its advisors first began to justify their possession of overseas territories, their primary concern was defending themselves against the Spanish, who claimed the Americas on the basis of papal grants dating to the time of Columbus’s voyages.¹³ Spanish explorers also claimed rights of conquest over the people who inhabited the Indies, holding that Christians could lawfully make war against infidels who resisted evangelism. The most striking formulation of these rights came in the Requerimiento, a declaration read aloud to Indians shortly after Spanish arrival on American shores. The Requerimiento justified the seizure of land, peoples, and property on the basis of resistance to evangelism: “if you do not [accept evangelism], and maliciously make delay in it,” it read, “we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses.”¹⁴ On this basis, Spanish conquistadors took any (real or imagined) Native refusal of evangelism as the basis for a war of conquest.¹⁵

While other European crowns were reluctant to recognize these rights, a succession of Spanish monarchs clung to them for over a hundred years. Conquistadors read the Requerimiento to Native peoples until the 1550s, and, well into the seventeenth century, the Spanish crown insisted that the presence of other European settlements in the Americas was a violation of its claims.¹⁶ In the early sixteenth century, this embargo was of little concern to English diplomats. English activities in the Atlantic were limited to fishing and trading in northern waters (where there was less danger of Spanish attack), and carrying out piracy on Spanish trading routes (an activity of questionable legality at best).¹⁷ However, when the English crown turned its attention to permanent settlement in the sixteenth century, the threat of Spanish confrontation made it imperative to establish claims in ways that would compel international recognition.¹⁸ In using treaties for this task, the English were primarily guided by Roman law, which offered crowns a way of justifying their sovereignty and dominion at home and abroad.¹⁹

Revived in the eleventh century, Roman law was widely disseminated and studied throughout early modern Europe. The Catholic Church derived many aspects of its canon law from Roman law, and by the thirteenth century Roman-influenced canon law had come to shape legal systems in Spain, France, and Holland.²⁰ While jurists at Oxford had begun to teach canonical writings in the twelfth century, Roman law was not as influential in England, where common law traditions were well established.²¹ However, as Ken MacMillan has recently shown, English princes and jurists embraced Roman legal codes when attempting to explain the crown’s independence from the pope and assert its absolute prerogative over international affairs.²² The Roman law of nations, in particular, answered the need for a normative legal system to govern interstate relations in the absence of papal authority. An outgrowth of natural law, the jus gentium, or law of nations or peoples, held that nations were bound by unwritten laws common to all mankind and rooted in human nature.²³ As written in Justinian’s Institutes, a widely glossed sixth-century compilation of Roman law, “the law which natural reason has established among all mankind and which is equally observed among all peoples, is called the Law of Nations, as being that which all nations make use of.”²⁴ The law of nations held that certain practices were shared by all peoples, that these practices were rational and natural, and that they offered a customary or normalized way of dealing with foreigners and strangers, even those who were pagans or heretics.²⁵ Throughout the sixteenth century, the law of nations saw wide adoption as European princes sought to define their imperium, or rule, and dominium, or territorial possessions, in relation to other sovereigns. In the late sixteenth century, many European jurists claimed acceptance of the law of nations as an international legal system. The English crown, in particular, encouraged the study of Roman law as a way to legitimate its power at home and abroad.²⁶

Particularly salient for the English crown were Roman criteria for defining legal possession of terra incognita, or undiscovered territory, a topic about which the common law offered no guidance.²⁷ As codified by Justinian, Roman law specified that land must be brought under control for possession to hold. Valid title demanded more than animus, or future plans to settle. As Justinian’s Digest put it, “we cannot acquire possession solely by intention.”²⁸ Legitimate title also required corpus, or physical possession. This criterion gave the English a powerful rhetorical lever in negotiations with Spanish crowns. While the Spanish had claimed the American landmass since the fifteenth century, they had settled only as far north as present-day Florida, leaving northern latitudes theoretically open for the taking. Throughout the late sixteenth and early seventeenth centuries, English colonists frequently made claims to the North American coast, asserting that unoccupied land was the property of the first Christian prince to settle it.²⁹ Just as often, however, English claims included territories that, far from being empty, were heavily populated and defended by Native polities. To claim control of such territories demanded justifications that described the conquest of occupied territory.³⁰ Many scholars of colonial law have associated conquest almost exclusively with New Spain and the infamous Requerimiento. They have argued that the English established New World claims by building fences and fortifications rather than by conquering people.³¹ This is true, if one defines conquest in military terms. English colonists almost never sought to incorporate Native people into their societies after defeating them in wars.³² However, the term conquest possessed a range of meanings in early modern England, many of which had little to do with military subjugation.³³ While the English sometimes waged holy wars of the kind justified by the Requerimiento, they preferred to advertise New World conquest as a benevolent pursuit, involving the peaceful subjugation of land and peoples.

In this book, I will argue that treaties were part of the English strategy for carrying out a supposedly peaceful conquest. This may seem like a paradoxical claim. Today, we think of a treaty as an agreement between equal states, not a conquest of one party by another. Yet this is largely a modern view. Early modern princes frequently made treaties with inferiors, including vassals, feudal lords, and even rebellious subjects.³⁴ These foedera vel inaequalia, or treaties between unequal parties, could involve many different matters, such as land rights, political loyalties, trade agreements, and even religious commitments. Unequal treaties were of particular interest to monarchs during the early period of colonial settlement, when the question of competing claims to overseas territory was increasingly becoming part of European treaty negotiations.³⁵ Indeed, long before the English set their sights on New World settlement, Spanish monks had debated the legality of the Requerimiento, suggesting that Spain’s claims to the Indies violated the natural rights of the inhabitants. In a series of lectures printed throughout Europe, the Dominican friar Bartolomé de Las Casas argued that Indian treaties offered a means of conquering territory that was consistent with natural law.³⁶ “Is it customary and right, in reason and natural law,” he asked in 1526, “to ask [the Indians] to swear obedience to a foreign king without establishing a treaty or contract or covenant with them regarding the good and just way in which the king would rule them?”³⁷ Beginning around 1530, Francisco de Vitoria, a Dominican who taught at the School of Salamanca from 1527 until 1540, likewise argued that treaties offered a way to claim American lands.³⁸ In a series of lectures later published by his students, Vitoria refuted the idea that the Spanish monarchy had power over the Indians in “temporal and civil matters,” such as the possession of territory.³⁹ Vitoria argued instead that the world was governed by natural law, which held sway over all people, Christians and unbelievers alike. Postulating that “Any commonwealth can elect its own master,” he argued that the Spanish could claim dominion if “the barbarians recognized the wisdom and humanity of the Spaniards’ administration, and one and all, both masters and subjects, spontaneously decided to accept the king of Spain as their prince.”⁴⁰ Vitoria viewed indigenous consent to Spanish rule as a theoretical source of title, as long as the treaty was made in the absence of “fear and ignorance” and therefore satisfied the criteria of consensus ad idem.⁴¹

The arguments of Las Casas, Vitoria, and other critics of the Requerimiento were never widely embraced by Spanish monarchs.⁴² However, starting in the late sixteenth century, many Protestant jurists adapted such ideas to the project of colonial justification. During the first decades of English colonization, Alberico Gentili, a professor of civil law at Oxford, published widely about the law of nations. His writings and frequent public lectures strongly influenced English colonial promoters and the royal councilors who lent financial and legal support to colonial endeavors.⁴³ In 1589, he published De Jure Belli Libri Tres, an authoritative application of Roman texts to legal problems arising from war and colonization. In particular, Gentili addressed the problem of how refugees, exiles, or settlers from populous countries could lawfully acquire sparsely occupied land that was nevertheless claimed by another sovereign. Gentili argued that “because of that law of nature which abhors a vacuum, [such lands] will fall to the lot of those who take them.” However, he specified that the original sovereign would “retain jurisdiction over them.” In describing how such an arrangement might work, Gentili approvingly quoted Aeneas’s vow to Latinus during the Trojan invasion of Italy. “‘I do not ask for dominion. Let both nations [Italians and Trojans] unconquered form a union on equal terms and live under equal laws.’”⁴⁴ The idea of a union between Christians and pagans was also put forward by Hugo Grotius, a Dutch jurist who published several widely read treatises on the law of nations. The work of Grotius did not circulate widely in England until settlement was well under way, but many colonial writers turned to his texts for support. Like Vitoria, Grotius addressed the question whether Christian powers could make agreements with unbelievers. “A question frequently raised concerning treaties,” he wrote, “is whether they are lawfully entered into with those who are strangers to the true religion.” Grotius held that “According to the law of nature” there is “in no degree a matter of doubt” about the lawfulness of such treaties. Grotius pointed to the contract between the Jews and the Egyptians as a biblical precedent for the lawfulness of treaties between believers and idolaters.⁴⁵

At the same time that jurists were making arguments about Indian treaties, English sailors and travelers were putting such ideas into practice, largely as an anti-Spanish strategy. In 1572–1573, English privateers formed ad hoc military alliances with the cimarrónes, groups of freed slaves and Native people who had fled the Spanish.⁴⁶ Sir Francis Drake and John Oxenham described the raids in letters that were widely read by English colonial promoters, such as Richard Hakluyt, who advised that colonists “have firme amitie” with neighboring indigenous peoples so as to become “strong in force” and better able to resist Indian or European enemies.⁴⁷ Native treaties were also a way of giving an appearance of legality to overseas activities that the Spanish crown viewed as piracy. During a voyage to California in 1579, Drake reportedly sat down to feast with a king who gave him a crown and scepter while his people sang a song “with one consent, and with great reverence.”⁴⁸ Drake completed this act of possession by planting a monument inscribed with the queen’s name (and his own under it).⁴⁹ In a printed account of his exploration of Guiana, Sir Walter Raleigh likewise described delegating his men “to treate with the borderers, and to drawe them to his partie and love.”⁵⁰ Adventurers such as Drake and Raleigh needed to be on good terms with nearby people to ensure the safety and food supply of their ventures, but publicizing such relationships in writing was a way of showing the Spanish that the English had begun to establish land claims.

While both jurists and travelers embraced the notion that Native peoples could form treaties—and that such treaties could support land claims—the English crown and its diplomats were at first cautious in their handling of such arguments, largely because the Spanish rejected the notion that Indians could make treaties. At first, the crown focused on the meaning of treaties for trading rights. In negotiations over the African coast in 1562, for example, Queen Elizabeth and her councilors asserted the right to trade with coastal peoples in Guinea regardless of Portugal’s claims to Africa.⁵¹ This argument relied upon the commonly held notion that independent nations possessed a natural right to trade with one another that no sovereign power could abridge.⁵² Arguments about natural law and Native peoples also found their way into the statements of English ambassadors during negotiations with the Spanish over the Treaty of London (1604). During that conference, the crown’s delegates argued that the English had every right to “trade with divers great kings of those countryes [in America] but as forrayners and strangers.” They claimed that “it is not in [Philip III’s] power to barre ourselves by accord” from trading with foreign peoples.⁵³ In the end, the Treaty of London remained silent on the question of the Indians, leaving the matter for future negotiations.

These kinds of arguments were suitable for defending trading ventures, which involved no meaningful occupation of territory, but as soon as the English created permanent colonies, it became necessary to clarify relations with neighboring peoples, who might also conceivably possess a claim to the territory, or the means to challenge English control. The labor of publicizing treaties fell primarily to colonists, who were required to complete the king’s claims by taking and holding territory. Colonists demonstrated possession in many ways, such as building forts or subjecting land to husbandry. But it was also crucial that they reach some kind of settlement with coastal polities to show that all questions of title were resolved. One way to do so was simply to purchase land from its indigenous owners. These purchases were good under common law, and were also recognized under the law of nations.⁵⁴ However, simple purchase was rarely enough to establish firm possession. People other than the sellers might come forward and claim the land was theirs, or neighboring tribes might be unhappy with the presence of the newcomers and attack them anyway. Even if the English viewed such challenges as illegitimate, they still troubled English claims, since possession required physical control. Treaties solved (or appeared to solve) such problems. They showed that nearby Indians were friends and not likely to challenge English holdings. In the early period, when the power balance favored the Indians, the English made treaties of nonaggression or military support with neighboring tribes. Later, after the newcomers had more power, they made treaties in which the Indians recognized the majesty of the English crown, or subjected themselves to English authority, ceding power to the newcomers in exchange for protection (these kinds of treaties were especially useful, because they showed other Europeans that the English were exercising sovereignty, even if the English had little desire to rule Indians in practice). Treaties often involved other issues as well, such as trade, hospitality, weapons, and rights of passage and extradition. Whatever the specifics, however, the English always had one goal—to defuse any Indian threat, and thereby secure claims under the law of nations.

The kind of security represented by treaties was even more important in places where colonists and Native Americans were at war. When the English first attempted to establish permanent settlements, many had predicted that the Indians would immediately recognize English superiority and gladly cede power to the newcomers. Events in the early settlement period, such as the violent end to the attempted settlement at Roanoke, soon cast doubt on this assumption.⁵⁵ Despite promoters’ and jurists’ statements about amity between peoples, war quickly became a norm of Anglo-Native relations. This forced promoters and colonists to change their legal strategy. Robert A. Williams, Jr., has argued that the English crown “Protestantized” the Spanish discourse of conquest, placing the English sovereign in the position of the pope as lord of the world, and depicting its own colonists as conquerors of pagan peoples.⁵⁶ Spanish writings were undoubtedly useful to the English crown and its jurists as they sought to redefine conquest for their own ends. While Vitoria did not believe in conquest as a means of evangelism, he argued that Indian refusal of Spanish rights of trade and travel could indeed serve as a pretext for a just war. “[O]nce the Spaniards have demonstrated diligently both in word and deed that for their own part they have every intention of letting the barbarians carry on in peaceful and undisturbed enjoyment of their property,” Vitoria wrote, “if the barbarians nevertheless persist in their wickedness and strive to destroy the Spaniards, they may then treat them no longer as innocent enemies, but as treacherous foes against whom all rights of war can be exercised, including plunder, enslavement, deposition of their former masters, and the institution of new ones.”⁵⁷ The English most commonly employed these justifications during highly publicized wars with Natives, such as the Powhatan Uprising (1622), the Pequot War (1636–1638), and King Philip’s War (1675–1678). Yet I will argue that conquest by just war was not always opposed to the strategy of possession by treaty. In the early decades of colonization, the English did not usually have the manpower or political will to carry out the kind of total conquest described by Vitoria. Colonists viewed treaties and war as complementary measures, to be pursued together, depending upon the circumstances. As William Strachey, a Virginia colonist, had written, “Planting … may well be divided into two sorts, when Christians, by the good liking and willing assent of the salvadges, are admitted by them to quiett possession; and when Christians, being inhumanely repulsed, doe seeke to attayne and mayntayne the right for which they come.”⁵⁸ Colonists often depicted themselves using war, or the threat of it, to secure “willing assent” to their presence. This may seem like a contradiction. The presence of any coercion was inimical to consensus ad idem in Roman law, just as violence is inimical to consent today.⁵⁹ As Vitoria had written, a treaty made in “fear and ignorance” was no treaty at all. When it came to explaining treaties that had been made during or after wars, colonists therefore faced a pointed dilemma. English writers had for decades criticized Spanish warfare against Native peoples while assuming that their own benevolence would lead to peaceful subjection. When this failed to happen—indeed, when Natives stalwartly defended themselves against English invaders—colonists tried to frame military settlements as voluntary treaties. This required publicizing new kinds of diplomatic approaches that combined friendship with deception, threats, and violence. To this end, the English implemented what I will call a divide-and-ally strategy. Divide-and-ally was pioneered in Virginia during the First Anglo-Powhatan War (1610–1614), when Jamestown governors sought to defeat Powhatan, the leader of the Powhatans, by making treaties with subjects at the periphery of his control while waging a so-called just war against Powhatan himself.⁶⁰ The governors of the Plymouth Colony and the Massachusetts Bay Colony also employed this strategy during their wars with the Algonquianspeaking peoples of southern New England. Divide-and-ally enabled colonists to reconcile war and peace, conquering enemies while making treaties with friends. Indeed, in their writings about violent conflicts with Natives, the English often depict war against enemies as bringing them closer to their friends.

Whether they described peaceful agreements, or Native consent obtained amid violence and strife, treaties were never ironclad proof of English possession. Claims about Native acquiescence were riddled with contradictions and tensions, just as visible then as they are now. Why, for example, would a powerful Native king voluntarily submit to a foreign power, as Hakluyt had predicted? European kings did not do such things; why would their Native counterparts? The attempt to argue that violence could coexist with voluntary consent raised even more questions. Could a treaty signed immediately after or even during a war truly represent a meeting of the minds, an agreement without coercion? Were threats enough to compel an entire nation to submit to English rule, and if they were, could such submission ever be construed as voluntary? As I will show in the chapters that follow, such questions frequently animated correspondence between the English crown, its colonial proprietors, and their European rivals.

The crown’s application of Roman law to Native peoples led to many local adaptations and controversies, as English colonial negotiators and secretaries published documents and narratives of coastal politics in an attempt to show they had things under control.⁶¹ Yet treaty relations were never merely applications of ancient texts to new territories. While the English viewed themselves as the superiors of Native Americans in almost every way, their legal strategy turned Native consent into evidence of English possession, leaving them ironically reliant upon the words and deeds of the people they sought to conquer.

Making Treaties

Scholarly accounts of international law have tended to conceive of Native polities as local or regional actors, operating on the periphery of the world of European crowns.⁶² This narrow view of early modern geopolitics ignores the expansionist designs and territorial reach of many coastal groups, as well as their participation in European debates about territorial possession. In the early period of settlement, the English entreated, befriended, and fought with a wide variety of polities.⁶³ These included the Powhatans, an expansion-minded chiefdom led by a hereditary sachem. They included the Susquehannocks, a commercially driven tribe that had largely remade its economy around markets in European furs. They also included the Patuxets, a group depopulated by epidemic, who pursued treaties with the English in an attempt to reclaim their own land. These groups had widely different politics and goals, but they shared some beliefs about law and diplomacy.

Just as many Europeans believed that laws ultimately came from the Christian God, so did many Algonquians view political and legal power as flowing from a creator.⁶⁴ In the Chesapeake and Potomac, this figure was called Ahone. In New England, he was Manitowoc. His power was called manitou. Other gods, people, animals, and objects were viewed as embodiments of manitou. Algonquians believed that everything in the world contained manitou to some degree. People, animals, objects, even words, utterances, and movements—all possessed manitou. Roger Williams captured the pervasiveness of manitou in his phrasebook of the Narragansett dialect of Algonquian, A Key into the Language of America (1643). “[T]here is a generall Custome amongst them,” he wrote, “at the apprehension of any Excellency in Men, Women, Birds Beasts, Fish, &c. to cry out Manittóo, that is, it is a God.”⁶⁵

This notion of manitou in all things was at the center of coastal practices for marking agreement and building political order. For many Algonquian groups, the creator was something of a distant figure. He existed as a force in the universe, seldom communicating with humans directly. This distance necessitated mediators known as quiyoughcosughs, a category of lesser powers that included human leaders such as chiefs, or werowances. Algonquians viewed their leaders both as embodiments of gods and as figures who kept the world of humans in balance with the world of spirits. Relations with foreigners were important to the power of werowances. Goods from distant places were understood as special objects from the spirit world that endowed their holders (and givers) with power. Chiefs created and maintained authority by acquiring prestige goods, demanding them as tribute when others acquired them, and dispensing them as gifts. While these rituals of distribution and alliance were linked to religion (in the same way, perhaps, as Christian teachings informed natural law), they also served more pragmatic purposes. Gifts, the historian Anne Keary writes, “were understood to be as much diplomatic exchanges as exchanges of wealth. They were formalized in oral rituals conducted at large interband gatherings, where marriages were also arranged, religious ceremonies performed, and gifts traded and tribute offered as a sign and seal of an interband alliance.”⁶⁶ The relationship between werowances and tributary groups little resembled that of princes and subjects in Europe. It had little of the absolutism characteristic of European crowns’ demands of total subjection. Lesser peoples gave werowances goods or access to resources; in turn, werowances promised military assistance or support at times of shortage or crisis. Unlike European subjection, this kind of submission was flexible. Greater or more frequent tribute strengthened relations; a lessening of amount or frequency introduced distance and independence. Smaller groups frequently acted on their own accord, or periodically dropped their affiliation with a chiefly power. Like all political systems the world over, those of coastal peoples were fraught with uncertainty and conflict. Some werowances exercised little power, while others violently compelled tribute. Nor were tributary systems historically static. The introduction of European trade goods in the fifteenth century altered the economies of tribute along the coast. The appearance of European pathogens also profoundly disrupted longstanding political routines, leading to massive reorganizations that offered openings for newcomers.⁶⁷

When the first English colonists sent home accounts of treaties with Native Americans, they were usually describing exchanges that Natives understood in terms of tribute.⁶⁸ However, the concept of tribute formed the basis of a wide variety of political practices that varied markedly across tribes and regions. Coastal leaders made oral agreements; they exchanged gifts, trade goods, animals, and hostages; and they marked the landscape with inscriptions and monuments. Though not dependent on alphabetic writing, these ways of performing and documenting agreements were binding expressions of consent, much like signatures in Western cultures.⁶⁹

When colonists first arrived in the Chesapeake Bay, they documented their participation in such practices in an effort to show that their neighbors were tolerating their presence. A treaty made in coastal fashion, they hoped, was a sure sign the Indians would not attack them, or otherwise challenge their control. However, while colonists and crowns viewed treaties as evidence for their own claims, such rituals only gained meaning in Europe through the written word. It was not enough to cite Roman legal texts or relevant contemporary authorities. Settlers also had to publicize their treaties in a way that would command legal recognition. This meant putting pen to paper, and finding ways to explain the significance of treaty practices many Europeans viewed as strange or barbaric.

Writing Treaties

When drafting treaties with Native peoples, colonists always had government audiences in mind.⁷⁰ On the first returning supply ship, they usually sent home letters attesting to the sincerity and friendliness of their neighbors. There were few agreed-upon conventions for documenting treaties in America. Vitoria, Gentili, and others had argued that treaties with Indians were good and valid, but colonists had scant precedents to guide them when it came to recording such treaties, especially when they had been ratified in Native fashion. At first, they documented treaties primarily for the councils of the joint-stock companies that funded colonization. These councils wanted to show the crown that they were seizing territory and holding it against potential foreign threats, and treaties supported this aim. Colonists usually reported such treaties in diplomatic relations, or letters to royal authority.⁷¹ As a genre that recounted words and behaviors, the diplomatic relation offered a way to describe modes of treaty ratification that lacked any clear analogue in the annals of European practice. Relations captured both official acts of ratification and the many behaviors and negotiations that surrounded them, all of which were understood as potential evidence of consent. Colonists who were out of favor with the crown, or not important enough to merit its attention, turned to other genres and venues. Sometimes, they printed Native treaties in reports or histories, seeking to leverage the publicity of the press to their benefit. After John Smith was ousted from the leadership of the Virginia Colony, he published a dissenting account of Powhatan treaty negotiations on the press at Oxford, hoping to inspire the colony’s stakeholders to throw their support behind him. Religious dissenters such as Roger Williams or Samuel Gorton pursued a similar tactic during the English Revolution, packaging accounts of Native treaties with reformist exhortations in the hopes of influencing Parliament on their behalf.

While colonists usually addressed treaties to royal authorities, they were also aware that others would read what they wrote. European diplomats were one such audience. Foreign agents collected and perused colonial relations and digested them for home governments. Alongside this officially recognized traffic in diplomatic papers, there was also an illicit circulation of narratives and stories about treaties. The Anglo-Spanish War saw the withdrawal of many official diplomatic embassies and an increase in spying and surreptitious written correspondence.⁷² While England, Spain, and France maintained diplomatic embassies throughout the early colonial era, diplomats often doubled as spies, intercepting documents and cultivating sources among discontented courtiers or religious dissenters. As well as addressing English authorities, colonists wrote for a shadow coterie of rivals. This coterie acted as a surveillance force, spying upon English settlements and intercepting their written communications. Colonists were extremely fearful of such spying. The establishment of the first English settlements coincided with rampant hysteria about Catholic conspiracy, stoked by the Gunpowder Plot as well as by James I’s deeply unpopular attempts to establish a marriage alliance with a Hapsburg princess. While this fear-mongering exaggerated the reality of Spanish power, Spanish ambassadors, Catholic loyalists, and English renegades frequently intercepted accounts of Native alliances and scrutinized them for evidence that Native leaders were less than fully agreeable to English designs. For example, Pedro de Zúñiga, the Spanish ambassador in London during the early years of Virginia settlement, intercepted letters and narratives from returning colonists and collected information from Irish Catholic spies at Jamestown. He used this information to characterize Jamestown as a piratical venture and attempted to compel James I to distance himself from the settlement. He also tried to persuade Philip III to attack the Chesapeake Bay. Rivalry with France likewise inspired fear about the interception of treaty documents. In 1624, the French captured the English agent Robert Cushman as he was returning from Plymouth Colony on a supply ship bound for London and held him and the rest of the crew at an island. The governor of the island, Marquis de Cera, “opened and kept what he pleased” of the colonists’ papers, including a narrative of Indian treaties by William Bradford, the governor of Plymouth.⁷³ To be sure, spies and raiders did not intercept all correspondence from the colonies. However, the English were always cognizant that they might, and this fear shaped the way they recorded alliances. As a London Council circular had put it in 1610, “The eyes of all Europe are looking upon our endevors.”⁷⁴

International contests over treaty documents were particularly intense during the first decades of permanent English settlement, when Spain still cherished claims north of Florida. However, even after English settlements gained strength in the 1620s and Spain largely dropped its protests, conflicts over treaties continued between the English and their Dutch and French rivals, and became particularly intense among English colonists themselves. Indeed, much of my narrative will concern figures at the margins of the colonial world, such as disgruntled officials, religious dissenters, and fur traders, who sought to acquire power by penning their own stories of treaty making. Dutch shippers, for example, appealed to the English crown for trading rights on the basis of agreements with Native peoples, employing the natural law arguments the English crown had itself used against Spain. English squatters also pointed to land purchases from Native leaders as part of appeals to the English Parliament for charters for their settlements. In the course of such controversies, the English crown often found itself resisting the very arguments it had made to Spain just a few decades earlier.

This culture of quasi-official treaty making was a central part of English colonial politics. Many important issues, such as the proper boundaries of colonies, the lawfulness of English fur trading, and the legitimacy of religious dissent, were adjudicated on the basis of evidence in Native treaties. However, the use of Anglo-Native treaties for strategic purposes was not limited to Europeans. After all, treaties were only meaningful because they carried some sign of consent from an important Native person—a transcript of a speech, for example, or a tale of a ceremony or ritual. Coastal political leaders also used treaties—and transatlantic communication—to gain an upper hand over Europeans and rival tribes alike.

Native Americans and Early Colonial Treaties

In many accounts of Native American history, treaties are synonymous with tragedy. From the beginnings of settlement on, Europeans made and broke many treaties, often with devastating results for Native peoples. From this fact, many have concluded that Native Americans had little agency in treaty making, or little knowledge of what treaties meant. Their lack of alphabetic literacy has reinforced the notion that they were at an inherent disadvantage when it came to the settlers, who wrote everything down, and could thus keep separate accounts, promising one thing while doing another. In a powerful account of the Treaty of Waitangi, an 1840 agreement between Maori chiefs and the government of New Zealand, D. F. McKenzie has shown how New Zealand officials exploited Maori leaders’ lack of written English literacy to induce them to transfer sovereignty to the English crown.⁷⁵ Undoubtedly, the lack of alphabetic literacy was a disadvantage in many cases. Natives, for example, did not have written duplicates of treaties, which was a liability if some clause later came into dispute. But this does not mean that Native negotiators failed to understand the newcomers or their means of communication, or had little knowledge of what treaties meant. Lack of written literacy did not prevent Native leaders from manipulating political negotiations to their own ends, especially in the early period, when many treaties took Native form. Of course, even in situations where Natives had most of the power, discerning their intentions today is always a great deal harder than figuring out those of Europeans.⁷⁶ The English went to great lengths to document their plans, leaving few of their intentions to conjecture. Native people, by contrast, appear through second-hand accounts of speeches or ritual actions, or, in later decades (after documentary treaties became more common), x-marks and pictographic signatures. To make matters more complicated, the English always framed or altered these expressions for their own ends. These many layers of mediation seem to make it difficult to recover how Native people used treaties, or what they thought of them.⁷⁷ In recent decades, however, many literary scholars have begun to consider European writing as a potential medium of Native agendas, intentions, and meanings. A tradition of scholarship on the settlement cultures of Latin America has pointed the way toward understanding Native uses of writing and print. This work has examined how Natives appropriated a number of literary and visual genres to their own ends.⁷⁸ Scholars in North American colonial studies have made parallel contributions to this field, showing how Northeastern Native people participated in English modes of communication, such as preaching, printing, and scribal publication.⁷⁹ This work has focused on how Native people used English technologies for reasons other than those its originators intended.⁸⁰

Understanding the Native perspective is crucial to interpreting treaty documents. Europeans only cared about treaties because they captured Native intentions. Treaties therefore cannot be understood without an inquiry into how and why Native people participated in their making. Native people left their figurative and literal marks on treaties in a variety of ways. When Virginia colonists arrived in the Chesapeake Bay region, for example, they confronted the Powhatans, a tribal chiefdom whose leader welcomed them as potential subjects and sources of trade goods. They also made contact with groups at the periphery of Powhatan control, who saw the newcomers as an opportunity for escaping subjection to the Powhatans. The complexity of Powhatan interband alliances, and the contentious nature of English transatlantic governance, meant that many different parties in the Chesapeake Bay wrote down accounts of treaties, producing a vast and verbally detailed archive of narratives of diplomacy and records of political accord, much of which made its way back to England. In such situations, it is often possible to compare multiple documents, and reconstruct what Native people thought about treaties and what they hoped to gain from them. North of the Virginia grant, things were different. Merchants and Catholic settlers in Maryland encountered Native groups already heavily invested in the fur trade, such as the Susquehannocks. These commercial interactions produced a much sparser written archive of Native words and deeds, as Virginia-based adventurers and their rivals in Maryland recorded interactions with the Susquehannocks and other groups in written receipts of land purchase and trade. In some cases, though, absences can speak volumes, as when the Susquehannocks refused to make trade agreements with Maryland because they were angry at how its governors had treated their Virginia trading partners. The situation in southern New England was different still. There, a plague introduced by European traders had decimated many tribal groups, upturning political balances that had evolved in response to the fur trade. When Plymouth and Massachusetts Bay colonists arrived in the 1620s, they assumed a powerful hand in their negotiations with weakened tribes, seeking to buy their land or to subject them to English power. At the same time, many religious dissenters and figures at the margins of Plymouth Colony and the Massachusetts Bay Colony tried to make treaties with Native peoples in order to acquire power and land. Many Native groups were interested in cooperating, creating a detailed archive of treaties signed by pictographs, which southern New England Natives had learned to use so they could participate in the fur and land market and in political settlements after wars. The development of pictographic signatures enabled the Narragansetts to communicate directly with Parliament, greatly strengthening their position against the Massachusetts Bay Colony. While these and other negotiations were often carried out in the name of larger groups, such as crowns or chiefdoms, it is also important to remember that they were shaped by individual agendas as well. Different tribes had different visions for the future, but many Natives, like many Europeans, were often only looking out for themselves. Their political actions were not always determined by tribal identity, tradition, or religion. Sometimes their speeches, gestures, x-marks, and pictographs represented individual rather than collective agendas.

Each chapter of this book focuses on a particular treaty or group of treaties. It starts with an account of what happened during the treaty negotiations, and then branches out to offer interpretations of the many uses Europeans and Indians made of treaty records. Chapter 1 considers the crowning of Powhatan sachems in early colonial Virginia. When the English crown and its councilors granted the territory around Chesapeake Bay to the Virginia Company, they were aware that the area was occupied by populous groups. During the first years of settlement, colonial governors sought to bring the Powhatans under control by crowning them as vassals of the English king. These crowning ceremonies, written up for transatlantic audiences by colonial secretaries, publicized the Powhatans’ consent to treaties and the crown’s corresponding possession of American land. Powhatans interpreted them differently, as marking English submission to them. These differing interpretations led to a series of standoffs, eventually culminating in a violent conflict known to historians as the First Anglo-Powhatan War. As the colony’s relations with the Powhatans deteriorated, a number of English writers, most notably John Smith, wrote home to criticize the colony’s approach to tribal diplomacy. Arguing that the colony’s “stately kinde of soliciting” had emboldened Powhatan leaders, Smith lobbied for a diplomatic approach based around Spanish models.⁸¹ As I will show, the stakes of this debate were quite high. The Spanish spied on Jamestown and circulated counter-narratives of Anglo-Native treaties designed to cast doubt on Powhatan alliances and inspire Philip III to raze the settlement, an action that at this time was still well within his power. While Europeans debated the meaning of the crowning ceremonies, Powhatan, the chief of the Powhatans, used the ceremonial objects he had acquired in such rituals to increase his own authority over Chesapeake Bay Native peoples.

Chapter 2 considers the international public relations war over the kidnapping and marriage of Pocahontas, the daughter of Powhatan. In 1613, Samuel Argall, an English navigator, abducted Pocahontas in order to ransom her for English captives and goods he claimed the Powhatans had stolen. After the kidnapping failed to resolve the conflict, Pocahontas married John Rolfe, an Englishman. The Virginia Company tried to advertise the marriage as a dynastic union between Jamestown and the Powhatans, claiming that the first male offspring would govern Chesapeake Bay as a cross-cultural leader. This strategy was useful in the wake of the First Anglo-Powhatan War. It enabled colonists to articulate a vision of peaceful order under English sovereignty. After securing funding, the Virginia Company brought Pocahontas to London to advertise their success at converting her to Anglicanism and turning her into a cross-cultural ambassador. While in London, Pocahontas became a pawn in negotiations between the English, Spanish, and French crowns over the composition of Catholic-Protestant alliances after the end of the Anglo-Spanish War. Hopes for an Anglo-Powhatan government perished when Pocahontas died shortly before her return voyage, leaving her son in England. Still, as I will show, colonists continued to debate the meaning of her marriage (and death) for Anglo-Powhatan alliances for years.

Chapter 3 shifts north to Plymouth Colony, describing the diplomatic activities of the Leyden Separatists, known in American history as the Pilgrims. While the Virginia settlement had been troubled by the threat of Spanish invasion, by the 1620s the Spanish had begun to accept England’s rights. And while the French and Dutch cherished competing claims to the land north of Virginia, they did not have the military strength to destroy the English outright. However, the increasing power of the English crown in North America did not mean that colonists abandoned natural law as a vocabulary for framing treaties. Instead, figures with uncertain legal standing, such as the Pilgrims, turned to the law of nations as a way of explaining their own legitimacy to the English crown and nearby European traders. Publishing Native treaties gave dissenters a way of proving their own standing to an English government that ignored them or was hostile to their plans. In Chapter 3, I describe how the Pilgrims used treaties with Native leaders to display their own power and legitimacy to transatlantic readers. The Pilgrims’ relations with neighbors were characterized by tension and sporadic violence. In their published works, the Pilgrims focus on their friendly relations with the Pokanokets, and draw upon the laws of war to defend their violence against enemy tribes, such as the Massachusetts and the Narragansetts.

After the consolidation of its possessions in Virginia and New England, the English crown increasingly encountered protests from Dutch and French rivals, as well as from English travelers involved in disputes with the chartered colonies. Chapters 4 and 5 consider the publication of Native treaties by figures operating beyond the bounds of chartered settlements. Many of the Europeans who traveled to the North Atlantic coast in the early seventeenth century went as traders. These commercial concerns had little interest in land rights. However, they did pursue various kinds of legal authorization that were articulated in the language of the law of nations. In Chapter 4, I examine how fur traders used Native treaties to assert rights to trade in North Atlantic waters. The question of who owned the seas was sharply contested in the early decades of English colonization. Before permanent English settlements were established, the English crown frequently asserted mare liberum, or the right to universal free trade, as a way of making inroads against Spanish claims. By 1630, the crown had begun to assert mare clausum, or exclusive rights to waters off the North American coast. This shift in legal strategy, I will show, drove fur traders under various flags to pursue Native alliances as a way of protecting their own rights against the English crown. I consider the documentary correspondence of two financial concerns, the Dutch ship the Eendracht and the trading post of the English adventurer William Claiborne. Both of these concerns were threatened by the crown’s assertion of mare clausum, and both tried to assert rights by arguing that Native people had given them permission to occupy parts of the coast and the waters adjacent to it. Both appeals were unsuccessful, but their efforts show how figures at the margins of the English colonial system used a variety of treaty documents to assert their own rights, as well as how those rights became entangled with those of Native peoples. The Susquehannocks used the written correspondence between traders and the English crown for profit and to protect themselves from Iroquois enemies.

My final chapter considers the writings of religious dissenters in Narragansett Bay. After being exiled by the governors of the Massachusetts Bay Colony, many religious dissenters purchased land from Narragansett sachems and began to settle the bay without royal permission. I examine the writings of two such dissenters, Roger Williams and Samuel Gorton. Both used transatlantic accounts of purchasing land from Narragansett sachems in order to appeal to Parliament for royal protection. Unlike the fur traders I discuss in the fourth chapter, Williams and Gorton were successful, securing royal charters that placed them on the same legal footing as the Massachusetts Bay Colony. These legal contests over the meaning of Native purchase occurred at the same time as the English colonies were pursuing the military conquest of the Algonquinspeaking peoples of southern New England. I close the chapter by considering how Narragansett sachems used Williams and Gorton to make their own appeal for protection to the recently seated English Parliament, which had assumed authority over colonial affairs during the English Revolution. This appeal was spectacularly successful and changed the political relationships between the crown, its colonies, and coastal tribes, initiating a shift to direct royal control of New England that ended the transatlantic traffic in treaties.

The story I tell in this book spans several decades. It begins with the settlement of Virginia in the wake of the Treaty of London (1604), and concludes with the English crown’s direct assertion of authority over New England Indians in 1664, an event that led most English colonists to abandon the transatlantic publication of Native treaties. In the window of time between these two events, settlers frequently publicized treaties with Native peoples to show their possession of territory (and sometimes waters). Many scholarly accounts have viewed these treaties as documents of barbarism—not the kind of barbarism the English projected onto Native Americans, but the kind we now associate with those who violate human rights. This much is true. But this way of looking at things can conceal the many agendas that converged on treaties or later found expression in them. Native treaties were part of a centuries-long attempted genocide, but neither Europeans nor Native people knew what the future would hold. It is this uncertainty—about what treaties meant, about whether they would be broken, and about who would triumph if they were—that I take as my starting point.