Upstate Citizens for Equality, Inc.

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by Warren L. Hickman

Copyright @ 1999

Reprinted with permission

By Warren Hickman to

Upstate Citizens for Equality, Inc.

Wherever possible, documentation in this chronicle has been selected from sources readily available to the reader in public libraries. Such sources include the Encyclopedia Britannica and publications of the National Geographic Society. These publications have in turn been carefully scrutinized by the author to determine the reliability and quality of their sources, in order to permit the reader to rely as much as possible on secondary sources. Only in quotations from decisions of arbitral Tribunals, the Supreme Court of the United States, and authorative international legal definitions has documentation from primary sources been necessary.


Thousands of years after first learning how to chip and polish stone sufficiently for it to be used as a tool, humans discovered that copper nuggets could be pounded into desired shapes. However, copper was too soft to provide an adequate substitute either for stone hammering and chipping tools or for weapons. Roughly 2,000 years would pass before tribes in the Middle East found that mixing tin with copper resulted in a new and much stronger metal, bronze. Thus was the Bronze Age born in Mesopotamia and Egypt around 3000 B.C?<

Even nomads of that age traveled relatively short distances in a lifetime. Communication was by personal contact, so it is not surprising that it was a thousand years later, 2000 B.C., before the Bronze Age reached Europe. As the Bronze Age gave way to the Iron Age around 1200 B.C. it again would take considerable time for new methods to reach Europe.

Although attempts were apparently made to domesticate dogs and sheep as many as 10,000 years ago, it was not until the Bronze Age that domestication of other animals appears to have been successful. Three genera] types of horses (Asian, Eastern European, and Northern European still ran wild during the transition from the stone age to the bronze age. Cows, not oxen, were beasts of burden and drew early plows well before horses served that role. It was around 1500 B.C. when Scythians and others began riding saddled horses.

Around 3500 B.C., the wheel was employed in shaping pottery and as a water driven means of raising buckets of water from a stream to a higher location to service relatively sophisticated irrigation systems developed by Sumerians. It also replaced logs used as rollers beneath a sledge. By 2000 B.C. spoked wheels were being used on chariots.


When Columbus first arrived in the Caribbean he found the cannibalistic Caribs raiding villages of the Arawak (Taino) for human meat. Captured Arawak women were being used as breeding animals to provide children, considered delicacies. Constant raids by the Carib would eventually drive the Arawak out of the Lesser Antilles[1]. These Indians, like those on the North American continent were still a Stone Age people, which is no reflection on their intelligence. We have only to recall that it took a thousand years for the Bronze Age to reach Central Europe after it had dawned less than a thousand miles away in the Middle East.

North and South America and Australia were so isolated by thousands of miles of ocean that it is no wonder that aborigines were still deep in the Stone Age when the first Europeans made contact with them. They were at the stage reached in the Middle East 4,500 years earlier. Archaeologists and historians frequently remark upon the sudden impact of Europeans upon the Native American Indians who never passed through the Bronze Age, but leapt directly from the Stone Age to the Iron Age. Even the horse was introduced by Europeans as horses in the Western hemisphere had disappeared sometime between 6000 and 8000 B.C.

Agriculture among Indians spread but slowly from Mexico to the Southern tribes of what is today the United States. Several crops could be raised each year in the American Southeast, but climatic limitations in the heavily forested North made it impossible for Indians to depend on agriculture for their existence. This was especially true after the "little ice-age" of the 15th century. With the warming beginning in the late 1600's and early 1700's a short summer season permitted limited cultivation of maize, squash, and beans. Slash and burn techniques cleared areas for planting. For tribes that would later become the League of the Iroquois, agriculture was a supplement to the bulk of the food obtained through extensive hunting, gathering, and raiding.

In what is now New England, New York, New Jersey, and Pennsylvania (nine states in all) there were only 55,600 Indians in 1600”.[2] Estimated total population of Indians in what is now New York State would not fill half the seats in the Carrier Dome of Syracuse University or a third of the football stadium which is home to the Buffalo Bills. Vast areas over which tribes fought for control in the 17th century were never used by the victors.

Early warfare among Indians had been in part a ritual. Later, tribes raided to plunder and to capture slaves. Iroquois war parties raided deep into the Carolinas until finally tribes of that area put aside their differences long enough to join in temporarily driving the Senecas and Cayugas back North. In describing the Iroquois the Encyclopaedia Britannica notes: "No other tribes showed such a preoccupation with supernatural aggression and cruelty, sorcery, torture, and cannibalism.”

As tradition relates the story of those tribes, which would become the Iroquois League, they were still practicing cannibalism in the 16th century. Prisoners could expect to be tortured. Their captors often slicing away parts of a living prisoner, roasting them, and eating them in sight of the still living prisoner. It was this practice which, according to tradition, led Deganawidah, a Huron, to convince a young “disciple" to join him in putting an end to cannibalism. Hiawatha[3]", an Onondagan living among the Mohawks, was that young “disciple" credited with joining his mentor in bringing about a confederation of the previously warring Seneca, Cayuga, Oneida, Onondaga and Mohawk tribes. Despite higher sounding phrases, the confederation was primarily aimed at allying these tribes to resist invasion by resentful neighbors and "to free them to war on others”.[4]

This beginning of what became known as the League of the Iroquois occurred somewhere between 1,570 and 1,600, after which Iroquois warriors fought on a much larger scale. Hundreds of warriors would gather to push smaller tribes out of their hunting grounds. Constant hunting always drove game out of an area for miles around an Indian village. Whenever game became too scarce to support a village it moved to a new location, which could temporarily provide better hunting. The new area, preferable beside a lake, pond, or stream that could provide water for crops in a dry season was cleared by slashing and burning. Much of what early Europeans described as primeval forest was actually regrowth in areas burned to provide space for plantings until a village again moved.

Among tribes the Iroquois drove out were the Algonquin, who when driven farther North became friends of early French arrivals who then sided with the Algonquin. From that point on, even after the Iroquois had wiped out almost the entire Algonquin tribe and driven its remnants into Canada, the Iroquois were deadly enemies of the French. Thomas Bailey aptly referred to the American colonies of the 18th century as a pawn on the European chessboard.[5] The English colonists gave their own names to those wars of Europe which never failed to impact life in the colonies -King William's War. 1689-1697; Queen Anne's War, 1702-1713; King George's War, 1744-1748; French and Indian War, 1754-1763.[6] In each of these wars the Iroquois were only too pleased to join with the British in attacking French colonies and were rewarded for their efforts as the British took Canada from the French.

Beaver pelts were in great demand in Europe. For kettles, knives, needles, fishhooks and other metal tools, guns, gun powder, blankets, cloth, canvas and other items they could not make for themselves the Iroquois trapped beaver by the tens of thousands. Eventually, having almost wiped out the beaver in their territories, tribes of the confederation attacked their neighbors in wars for new territory in which to trap. These wars, fought with the larger number of warriors the League could put in the field, drove out" the Hurons and Tionontati in 1649-1650, the Neutrals in 1651, the Erie in 1656, and the Susquehanna in 1675"...the Mahicans were wiped out. Eventually they controlled lands from Illinois to New England.[7] Not all captives were killed. The decision as to whether to permit a captive to live usually rested with the women who also conducted most of the torture. If a captive seemed adaptable he might be brought into the tribe to replace a lost warrior. Losses were heavy, and at one time it is estimated that so many captives were adopted by the Senecas that more than half the male population of the tribe consisted of "aliens".

In 1701, the Iroquois signed over all hunting and dwelling rights to the British in return for British protection "forever", especially against the French and French supported tribes anxious to regain territory lost to the Iroquois. A renewal of this "treaty", by a "treaty" of 1726, was accepted by the British King. Actually this was a compact or contract, rather than a treaty as recognized in international law, and was again renewed in 1746 and later. This would become a most important point when after their defeat in the American Revolution the British would sign over these rights to New York.

The Iroquois became the League of Six Nations when the Tuscaroras, driven out of the Carolinas, were brought into the confederation about 1722. It was during these lengthy 18th century European wars which always embroiled British and French colonies that Iroquois forays against the French and tribes allied with the French earned the Iroquois those goods they could no longer count on obtaining after over-trapping the beaver.

In November 1768, some 3,400 Iroquois arrived at Fort Stanwix (today, Rome, N. Y.) to negotiate with the British. The earlier Proclamation of 1763, at the end of the French and Indian War, had proved unworkable, and the purpose of the meeting at Fort Stanwix was to arrive at a workable agreement. In return for an Iroquois agreement, which would permit settlers to move into central New York and Pennsylvania, the Iroquois received more than £10,000 worth of goods. Later it was found the Iroquois had agreed to cede some territory they did not control, land of other tribes.

The Peace of Paris ending the American War for Independence was signed on September 3, 1783. Thirteen months later, on October 22, 1784, the Council of the Six Nations, torn by dissent between tribes which had sided with the Americans and those which had fought for the British, met at Fort Stanwix with Federal Commissioners appointed by the Continental Congress. This time negotiations were with the newly independent State of New York, which had succeeded to all that had been the British colony of New York. By then the Iroquois claimed only a small area in Western New York. However, they also held most of the fertile land of Western Pennsylvania (more than one-quarter of the State). Later it was found that some of the land signed over by the Iroquois actually was contested by the Shawnee.


As late as 1656, a French priest staying with the Cayugas found the population of the tribe to be only about 1,500, living in no more than 100 longhouses scattered among the Cayuga villages. The warlike character of the Cayugas, Senecas, and Mohawks with its attendant casualties continued to keep the population of the tribe low as they passed into the eighteenth century. They and the Senecas continued to raid farther afield than most tribes in North America. Temporarily accepting cooperation of the Delawares they, with the Senecas, drove the Cherokees south to what is today Tennessee and the Carolinas and then moved against tribes in Ohio and Pennsylvania until by the 1750's the Iroquois had "subdued, incorporated, or destroyed" most of the tribes of the Piedmont (New Jersey to Alabama, east of the Appalachians).[8]

After Ethan Allen seized Ticonderoga and Crown Point early in 1775, war leapfrogged many areas, became pitched battles in others, and assumed characteristics of guerilla warfare in still others. Contact between Iroquois and American settlers on the New York frontier had over the years resulted in friendly relations with tribes having the closest contact with the settlers. As a result, the Iroquois League split when the American Revolution spilled into New York and Canada. The Tuscarora and Oneida nations siding with the Americans while the Cayuga, Seneca, Onondaga, and Mohawk became the fiercest of the British guerilla fighters.

Cayuga chiefs quickly moved with the Cayuga warriors to the area around Fort Niagara from which they received food, blankets, guns, and other materials while using the Fort as their base for raids into Central New York and Pennsylvania. By the second year of the American Revolution Cayugas, often accompanied by Senecas and Mohawks, made almost all of central New York untenable for farm families. It was early in the third year of the eight-year war when Colonel John Butler led a mixed band of Tories and Iroquois on a sweep through the settlements of Wyoming Valley (in Pennsylvania, south of Elmira, N.Y.). When turned loose, Butler's Iroquois wiped out the homes of some 5,000 settlers in the infamous Wyoming Valley Massacre of July 3, 1778. Found dead were 360 men, women, and children, while scores if not hundreds more died without food in the forests to which they had fled.

With his Cayuga, Seneca, Mohawk, and Onondaga bands Butler turned back to New York in a series of bloody raids along the New York-Pennsylvania border and as far north as the Mohawk Valley. In an attempt to put an end to these raids on frontier farms and villages in New York, a small American army detachment destroyed the Indian villages of Oghwaga and Unadilla, which the Indians had evacuated upon learning of the approach of the Americans. Far from subduing the Cayugas and Mohawks this appeared to be incentive for even bloodier raids. On November 11, 1778, Cayuga war parties that had been raiding frontier farms along the Mohawk valley joined other war parties to raid Cherry Valley (south of the Mohawk River). The burning, looting, scalping, and rape of that Cherry Valley Massacre was a last straw.

It was too late in the fall for General Washington to order a campaign against the central York tribes, Winter in upstate New York in 1778 was not the time in which to launch a march through snow up to a man's hips, temperatures dropping below zero, with only the food and munitions the men could carry on trails impassable to wagons. With the coming of good weather in 1779, Major General John Sullivan with a command of 4,000 men moved against the Indians. The seriousness with which Washington and the Continental Congress viewed the Iroquois raids is obvious in the number of men assigned to this campaign. Total American forces at anyone point during the American Revolution seldom numbered more than 20,000. Washington was sending Sullivan with a force the equivalent of a fifth of the Continental Army.

In a battle near where Elmira now stands the massed Iroquois were defeated. Continuing his march Sullivan destroyed villages used by the Iroquois when leaving Fort Niagara for raids on farms and villages of east-central New York and Pennsylvania. Most Indian families had accompanied their chiefs and warriors either to Fort Niagara or into Canada. As Sullivan tore down or burned forty villages he cut any corn then growing, chopped down fruit trees, and destroyed corn stored for use of raiding parties. Although Cayugas would return to Central New York in small raiding parties, the overall effectiveness of the Iroquois as British mercenaries in Central New York had been destroyed.

Cayuga chiefs, most of the Cayuga warriors, and those families which had not moved to Canada, decided to remain along Buffalo Creek and around Fort Niagara. Later a few Cayuga families would drift back to the area around the northern shores of lake Cayuga.[9]

Colonies, which had broken free from Britain, were recognized as States. In international usage a "State" is a politically organized people within a specific geographical area with a sovereign (independent) government. France, Britain, the United States, and China, like all members of the United Nations, are by definition "States". When hostilities ceased, individual States issued currency, levied tariffs on goods from other States, and otherwise demonstrated their independence and sovereignty. The new state, New York, as an independent (sovereign) State, adopted its constitution in April 1777, while the eight year Revolution was only corning to the end of its second year. Thomas Bailey, the eminent diplomatic historian in commenting on the situation at the conclusion of the war wrote:

"When President Lincoln declared at Gettysburg that the Founding Fathers had 'brought forth a new nation' in 1776, his patriotic zeal outran his historical accuracy. He might better have said that those Fathers had brought forth a litter of small nations."

In 1926, Great Britain and the United States agreed under arbitration treaties in effect at that time to have an international Tribunal arbitrate claims of the Cayuga Nation, then living in Canada. That Tribunal {Nerincx, Fitzpatrick, Pound), in recognizing the true situation at the end of the American War for Independence, declared:

"The power which had sovereignty over the land has always been held the sole judge of its relations with the tribes within its domain. The rights in this respect acquired by discovery have been held exclusive. 'No other power could interpose between them.' (Marshall, C. J. in Johnson v. Mclntosh, & Wheat. 543, 578.) So far as an Indian tribe exists as a legal unit, it is by virtue of the domestic law of the sovereign nation within whose territory the tribe occupies the land, and so far only as the law recognizes it. Before the Revolution all the lands of the Six Nations in New York had been put under the Crown as 'appendant to the Colony of New York,' and that colony had dealt with those tribes exclusively as under its protection. (Baldwin, J. in Cherokee Nation v. Georgia, 5 Pet. 1,34,35.) New York, not the United States, succeeded to the British Crown in this respect at the Revolution. Hence the 'Cayuga Nation’, with which New York State contracted in 1789,1790, and 1795, so far as it was a legal unit, was a legal unit of New York law."

"....... we should have to say that the Legislature of New York was competent to decide, as it did in the Treaties of 1829 and 1831, what constituted the 'Nation', for the purposes of the prior treaties made by the State with an entity in a domestic sense of its own law and existing only for its own municipal purposes."

A Treaty between the United States and another State or States is considered supreme law of the land. The arbitration of 1926 was carried forth under arbitration treaties so recognized. This means that in 1926, the United States had agreed that at the end of the Revolution the State of New York succeeded to rights of the former British colony. That was the colony to which the Cayugas had repeatedly given up claims to all "hunting and dwelling land" in return for protection. New York succeeded to the British Crown as the entity with which the Cayugas had contracted for protection in return for abandoning all claim to lands within the State. This was the relationship of any Cayugas in New York State with the State of New York as of the signing of the Treaty of Paris in 1783.

* * * * * * * * * * * * *

Early primitive Stone Age practices of American Indians have been mentioned. This briefly included their practices of cannibalism, torture, and human sacrifice. It is important that serious investigators of that period remember that American Indians at the time of their first contact with Europeans were living as Europeans had lived four thousand years earlier. We do not pass moral judgments on Stone Age Europeans. We do not use twentieth century standards in judging ancient biblical characters who practiced human sacrifice. We do not condemn the Huns or early Mongol raiders of the steppes for their brutal warfare. We accept with scholarly detachment Caesar's account of his soldiers cutting off the right arms of men captured in a campaign in order to prevent them from again being able to wield a weapon against Roman armies. (A practice not dissimilar to that of Central African warriors when they migrated to the territory of tribes in what is today South Africa.) Mutilation of a dead enemy by American Indians was supposed to prevent that enemy from being able to attack his killer when both had moved on to the happy hunting ground.

In the 1600's and 1700's the clash between the Indian and the European was a clash of cultures -a clash of cultures divided by several thousand years of cultural development. What was a horrendous atrocity to the American colonist was often a religious ritual or a tribal expectation of a warrior, if he were to be respected by his tribe. If there were a time machine capable of transporting a twentieth or twenty-first century American of the most liberal and lenient leanings to the Middle East of Biblical times, she or he would be horrified by the human sacrifices and acts of warriors or in later times the practice of crucifixion. The purpose of briefly referring above to the behavior of the Cayuga and other American Indians is to illustrate the differences in what was culturally acceptable in the two conflicting cultures. It should not be grounds for any disparagement of the intelligence of the Cayuga. Our discussion here should be an attempt to empathize with the American settlers and the Cayuga of the late eighteenth century. But, just as we should not judge the Cayuga by today's standards of behavior, so we must see the acts of the early citizens of New York with an eighteenth century perspective.


There has always been an argument as to whether the Articles of Confederation were a constitution or a treaty. Obviously they did not give the Continental Congress the full powers of a sovereign state. Citizens of the newly declared States were not about to give a new central government such powers as control of trade and the right to levy taxes. They had 1ust entered a revolution to rid themselves of a government with such powers. On the other hand, the Continental Congress (there was no executive branch) was authorized to send ambassadors, to seek aid from the French and other powers in fighting the British, and to sign treaties on their behalf with such powers. The Encyclopaedia Britannica notes:

"The problem of financing and organizing the war sometimes overlapped with Congress' other major problem, that of defining its relations with the states. The Congress, being only an association of states had no power to tax individuals. "

Each individual State found it necessary to raise funds, which it then contributed to the joint effort of the States at war with Britain. In regard to the Continental Congress' relations with these newly created States, which had not given up their sovereignty, Article IX of the Articles of Confederation (1781) is particularly pertinent. It states:

"The United States in Congress assembled, shall also have the sole right and power of " …. .regulating the trade and managing all affairs with Indians not members of any of the States within its borders, be not infringed or violated."

Furthermore, the States were assured that "… no state shall be deprived of territory." The term United States, used by the First and Second Continental Congresses did not mean a single body or State bearing the name United States. It referred to sovereign States allying themselves (uniting) in a Congress[10] for the purpose of waging war against Britain. The important phrase of the above quote from Article IX restricts the power of the Continental Congress with regard to Indians within a State. It. like the later Trade and Intercourse Act of the United States Congress was aimed at efforts by States to gain further territory by negotiating with Indians West of the original colonies.

With the signing of the Treaty of Paris ending the Revolutionary War in 1783, New York was recognized by the signatories of the treaty as one of the new sovereign States in eastern North America. As such, as previously noted, it was the State succeeding to the British Crown in all relations and previous agreements with the Cayuga.

The Treaty of Paris required British withdrawal from all forts and posts along the frontier "with all convenient speed". However, British troops remained in forts stretching from Lake Champlain to Lake Superior, giving them continued access to furs for export. More important, it made possible continued use of Indians as a barrier slowing movement of American settlers into Ohio and other Western lands. Ten years after the Treaty of Paris the British were still furnishing guns, blankets, tools, food, and firewater to the Indians based at these forts. Cayuga warriors continued to use Fort Niagara as a base for their raids into Ohio, even though the "Nation" had moved to Canada in 1784. During the War of 1812, thirty years after the Revolution had come to an end, Cayugas and Senecas, still supplied by the British, would bum the town of Buffalo to the ground.

The 130 Cayugas, roughly two dozen families, who filtered back into the region around the northern end of Lake Cayuga in 1784 were causing concern.[11] " They wandered across farmers fields, followed the Indian tradition of stealing (considered by tradition to be an act of daring for which they should be praised), and killed settler's livestock. Word of the continuing raids in Ohio by Cayugas and Senecas based at Fort Niagara did nothing to calm the nerves of settlers in central New York. In 1789, heeding complaints of the settlers, representatives of the still sovereign State of New York met with a handful of these local Cayugas in Albany where they drew up an agreement, the "treaty" of 1789 (February 25, 1789). By this contract these Cayugas were given an area[12] in which they were expected to remain instead of wandering over hundreds of square miles. This was the first time any Cayuga held legal title to land in New York State. A part of this land was given in particular on the basis of a "white man" married to a Cayuga. Except for a few women, this small party of "Cayugas". North of Lake Cayuga would have had a difficult time tracing their Cayuga lineage.

When word of this so-called treaty reached the Cayuga Chiefs and warriors along Buffalo Creek and on the Grand River in Canada, they had every right to be infuriated. What right, they fumed, did that little band that had dropped out of the tribe have to sign a "treaty" on behalf of the Cayuga nation? The Chiefs, Sachems, and warriors promptly demanded a new agreement on the basis of the lack of representation by the proper Cayuga chiefs and warriors. Recognizing its blunder, the State of New York agreed to the Cayuga Chiefs' demand for a revision of the 1789 contract. When the return of spring weather in 1790 permitted, the Cayuga Chiefs, Sachems, and chosen representatives of the warriors crossed the width of the state to Fort Stanwix to draft a new "treaty". They indicated they had absolutely no use for land in central New York, Six years earlier. The "Nation" had moved to Canada where they were receiving food and other supplies from the British. As British allies the Chiefs and warriors were still using Buffalo Creek and Fort Niagara as a base for their raids.

When the British would eventually be ready to move to Canada, Cayuga Chiefs at Niagara were prepared to go with them.[13] Instead of land, they wanted a monetary settlement giving the tribe annual means of obtaining goods beyond those furnished them and their families as guerrilla fighters for the British still illegally hanging on to their string of Northern forts.

The State of New York agreed. In place of land for 130 local Cayugas not recognized by the Cayuga Nation, New York contracted in this amended version of the "treaty" to pay $1,625, in June 1790, and $500, annually thereafter to the Cayuga Nation. The Cayugas, in turn, returned title to the land to New York State.[14] Recognizing their earlier error in considering the tiny splinter group of Cayugas in central New York as representative of the Cayuga Nation, the State of New York made these payments to the Cayuga leadership in Canada. The arbitral Tribunal considering the Canadian Cayuga's claims in 1926 stated:

"There are receipts upon the counterpart of the Treaty of 1795 down to and including 1809, and these receipts and the receipt for 1810, retained by New York, show that the only persons who can be identified among those to whom the money was paid, and the only person who can be shown to have held prominent positions in the tribe, were by then living in Canada.”

In 1795, representatives of New York met again with the Cayuga Chiefs and increased the annual stipend by $1,800. With reference to that "Treaty of 1795 the Tribunal further stated:

"By the terms of the latter treaty (1795) in which, as we hold, the covenants of the prior treaties were merged, the State covenanted, among other things, with the 'Cayuga Nation' to pay said 'Cayuga Nation' eighteen hundred dollars….”

When the United States accepted the decision of the arbitration Tribunal (which with respect to international law it had to do) the United States Congress appropriated and the President approved a payment one hundred thousand dollars to satisfy the claim of the Cayuga Nation residing in Canada. That payment was based on the Tribunal's point that they held the covenants of 1789, 1790, and 1795 to be merged. This was clear acceptance of the fact that the so-called treaties of 1790 and 1795 were amendments to the "treaty of 1789, and were both part of a merged covenant.

Though the required ninth state, New Hampshire, finally ratified the new Constitution for a United States of America on June 21, 1778, it would not go into effect until March 4, 1789. New York and Virginia would only agree later to ratify the Constitution.[15] Without them the new "United States" could not have succeeded. Of course the new government was not complete at that point. Although Washington was elected President by the electors on March 4, 1789, there being no national election, Congress did not begin meeting for the first time until Apri14. Washington was inaugurated on Apri130. It was not until six months later, on September 24, that the Federal Judiciary Act created the United States Supreme Court. The following day Congress submitted the Bill of Rights to the States for their approval. During the next year, 1790, confusion abounded while Congress attempted to sort out its duties, prevent individual states from expanding beyond control of the new federal government, and prepare for its move by the year's end to a temporary capitol in Philadelphia. The Bill of Rights would not go into effect until December 15, 1791. Few Americans understood what was going on, what had been legislated, and what was still in abeyance besides the Bill of Rights.

Eight years earlier, America and Britain had signed the Treaty of Paris ending the American Revolution. Despite terms of the Treaty by which Britain would remove all her troops from forts in the newly independent American territories, British troops and their Indian allies still had not complied with the Treaty by the time the Constitution was fully in effect. Cayuga warriors still joined with Senecas and others in raiding Ohio settlements. Finally, in 1792, nine years after the signing of the Treaty of Paris, "Mad" Anthony Wayne of Revolutionary War fame was named commander for the Ohio area. A year later on August 20, 1794, his army defeated the Indians in the battle of Fallen Timbers on the Maumee River. Among the dead on the battlefield were white Canadian volunteers. With British advances checked at Fort Miami, evacuation of British Forts in the territory of the new United States was finally undertaken in earnest. Those Cayugas who would remain in Ohio continued to receive supplies from British "traders". This offshoot of the Cayuga Nation became residents of Ohio until their eventual move to Oklahoma.


A treaty is “ a contract or other written instrument binding two or more states under international law. According to diplomatic usage the term treaty is confined to the more important international agreements, whereas those agreements of lesser or subordinate importance are called conventions, arrangements, protocols and acts."[16]

Treaties can only be made between sovereign states. The definition of the term "State" has already been noted. Acceptance of this definition by the United States is beyond question for it was a signatory of the Convention On Rights And Duties Of States in Montevideo on December 26, 1933. That Convention states;

"Article 1. The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States."

Obviously, the Cayuga had no permanent population in New York, the Nation having moved to Canada while some splinter groups dispersed. Equally obvious, they had no defined territory under a central government. Furthermore the Cayuga do not have the capacity to enter into relations with another State such as the United Kingdom, France, China, or any other sovereign State. That, in turn, means they could never sign a "Treaty". They could only agree to a contract.

Oppenheim's International Law

“A State proper….. is in existence when a people is settled in a country under its own sovereign Government, The conditions which must obtain for the existence of a State are therefore four:

"There must, first, be a people. A people is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of a different color.

"There must, secondly, be a country in which the people has settled down. A wandering people ….. is not a State…..

"There must, thirdly, be a Government -that is, one or more persons who are representatives of the people and rule according to the law of the land. An anarchistic community is not a State.

"There must, fourthly, and lastly, be a sovereign Government Sovereignty is the supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term implies, therefore, independence, all round, within and without the borders of the country."

Any agreement signed by the Cayuga, no matter what title was appended to that agreement, can not by the furthest stretch of imagination meet the requirements of a Treaty. As far as can be determined there was, among the New York representatives signing the so-called treaties with the Cayuga, no one who had ever had any acquaintance with international relations to the extent of knowing the document they labeled a treaty was not a treaty, but an amendable contract.

After the Civil War, Army officers and Indian Agents drafted numerous contracts between Western tribes and the United States. To almost all of these they attached the label "treaty". This may have made these documents appear more important in their eyes, and on their records when they were received in Washington. For some, the use of the word treaty as a title on an agreement may have inflated their ego -they had become treaty makers. The very fact that these later contracts signed by the United States Government were voided whenever it was decided to move a tribe from a location promised in a "treaty" to another location specified by the United States in a later contract (also entitled "treaty") means these were not treaties. One sovereign State cannot by itself change a Treaty between itself and another sovereign State or States. Only because these agreements were not Treaties, despite their titles, could the United States arbitrarily alter these arrangements.

Not only were the roughly two dozen Cayuga families not sovereign, they were not the Cayuga Nation. They agreed to the "treaty" of 1789, signing as representatives of the Cayuga Nation while being but a small splinter band. Only the Cayuga Nation's Chiefs, Sachems, and leading warriors could represent the Cayuga Nation, and they denied that the roughly two dozen families of Cayugas in central New York had any authority, much less sovereignty. The agreement of 1789 was akin to the United States today signing an agreement with a small guerilla band in Columbia or Venezuela and claiming it to be a treaty with Columbia or Venezuela.

Oppenheim's International Law further states:

"The so-called right of making treaties is not a right belonging to a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treaty-making power only so far as it is sovereign."

In 1831, the Cherokee Nation sued the state of Georgia. The United States Constitution (Article Ill) provides that in "controversies between a state and a citizen thereof, and foreign states, or subjects" the Supreme Court of the United States shall have original jurisdiction in all cases in which the state shall be a party.

After considerable explanation of the arguments on all sides regarding jurisdiction, the Supreme Court declared:

"The Court has bestowed its best attention on this question, and, after mature deliberation, the majority is of the opinion, that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the Courts of the United States. "

Under treaties in effect in 1926, Great Britain sought binding arbitration to settle a claim on behalf of the Cayuga Nation, which had moved to Canada in 1784. Payments made to the Cayuga Nation in Canada as agreed upon in the 1790 and 1795 "treaties" had ceased, apparently around 1810. The United States agreed to this binding arbitration.

The arbitral Tribunal (Nerincx, Fitzpatrick, Pound) in the matter of Great Britain (The Cayuga Indians Claim) v. The United States (1926) declared:

"So far as an Indian tribe exists as a legal unit it is by virtue of the domestic law of the sovereign nation within whose territory the tribe occupies land, and so far as the law recognizes it. Before the Revolution all the lands of the Six Nations in New York had been put under the Crown as 'appendant to the Colony of New York,' and that colony had dealt with those tribes exclusively under its protection. (Baldwin, J., in Cherokee Nation v. Georgia 5 Pet 1,34,35.) New York, not the United States, succeeded to the British Crown in this respect at the Revolution. Hence the 'Cayuga Nation,' with which the State of New York contracted in 1789, 1790, and 1795, so far as it was a legal unit, was a legal unit of New York law."


"In the first place, the Cayuga Nation had no international status. As has been said, it existed as a legal unit of New York law. It was a de facto unit, but de jure was only what Britain chose to recognize as to the Cayugas who moved to Canada and what New York recognized as the Cayugas in New York or in their relations with New York. As to annuities, therefore, the Cayugas were a unit of New York law, so far as New York law chose to make them one."

The opening phrase of Article I, Section 10, of the United States Constitution declares: "No State shall enter into any Treaty, Alliance, or Confederation." That the negotiations and contracts with the Cayuga are not covered by that phrase appears evident in the United States Supreme Court ruling in the 1831 case Cherokee v. Georgia. In that ruling, noted above for its decision that the Cherokee were not a foreign State capable of entering into a treaty, the Supreme Court also ruled:

"These considerations go far to support the opinion that the framers of our constitution had not Indian tribes in view, when they opened the Courts of the union to controversies between a state or citizens thereof, and foreign states. "

In a later paragraph, Justice C. J. Marshall notes:

"The bill (Cherokee claim) requires us to control the state of Georgia. The propriety of such an interposition by the Court may well be questioned. It savors too much of the exercise of political power to be within the province of the judicial department."

Marshall further commented that, "If it be true that the Cherokee have rights …” the Supreme Court is not "the tribunal, which can redress the past or prevent the future."

The decisions of the United States Supreme Court in 1831, and the arbitral Tribunal in 1926, clearly indicate that a "Treaty" as the term is used in the Constitution never existed. Instead, in the language of the Tribunal arbitrating the British claim for the Cayuga Nation, which had made its home in Canada "the 'Cayuga Nation' with which the State of New York contracted in 1789, 1790, and 1795, so far as it was a legal unit, was a legal unit of the State of New York." The Tribunal's quotation marks around "Cayuga Nation" indicate that though several Cayuga from the splinter band of approximately two dozen families might be referred to as the Cayuga Nation by the signers of the so-called treaty, they were in no way the Cayuga Nation which with its Chiefs no longer lived in New York. The key word is "contracted", for the Tribunal, like the Supreme Court, did not consider these to be "Treaties" in the international sense. And, it is the international sense of that word that was employed in Article I, Section 10 of the Constitution. As a legal unit of the State of New York it was proper for the State to contract with that unit.

A recent ruling that the federal government could not ratify an otherwise unlawful treaty "by implication" would appear to have no bearing on a contract. The United States Supreme Court made it clear that such agreements were contracts not "Treaties" even though mislabeled as such. The international Tribunal in 1926 made this equally clear. Considering that an international treaty when signed by the President and ratified by the United States Senate becomes law of the land, and the arbitration of 1926 was carried out under such a treaty and the decision was accepted by the United States, it is questionable whether Federal Courts in the 1990's had jurisdiction in the matter of the Cayuga claims. It would appear that the Court would first have to prove all previous definitions of a treaty by centuries of international usage; Department of State usage; the meaning of the term Treaty as employed in Article I, Section 10, and Article II, Section 2 of the United States Constitution; and United States Supreme Court and International Arbitration Tribunal definitions were in error, and that the Court dealing with the Cayuga claims of the 1990's had the sole right to redefine the term "Treaty" in order to permit the case to proceed.

To ignore an international treaty providing for arbitration, signed by a President and ratified by the United States Senate would create a precedent of terrible proportions. This could be interpreted as meaning the United States could arbitrarily void all past arbitration decisions reached under rules agreed upon in previous international treaties

Popular misuse of the words "nation" and "State" has led to confusion. A nation is a group of people bound together by something in common such as language, ethnic origin, or religion. In 1999, the world witnessed problems of multi-nation States such as Yugoslavia and those African States whose boundaries, set by colonial powers, include several nations or sometimes leave parts of a nation in two or more States. The Soviet Union included many nations, some of which like Latvia, Lithuania, Estonia, Armenia, the Ukraine, Georgia, Azerbaijan, and Kazakhstan have since gained their independence and become States. Kurds are a nation living in Eastern Turkey, Northern Iraq, and Western Iran. Palestinians are another example of people considered a nation, but not a sovereign country. If eventually their sovereignty is declared and recognized they will be described as a nation-state. In contrast, nowhere in early treaties or today has there been recognition of the Cayuga Nation as a State. If it were, borders of a reservation would require immigration and customs officers and payment of duties as one finds in crossing the Peace Bridge from Canada.

Likewise, two or three dozen families breaking away from a nation can never be recognized as a nation apart from the nation from which they departed, as has been attempted by some white supremacists in the American West in the late twentieth century.

The 1926 Tribunal arbitrating the Cayuga Claim noted in referring to the 1789 Treaty that:

"As there was much dissatisfaction with this treaty on the part of the Indians, who asserted they were not properly represented, it (the treaty) was confirmed by a subsequent treaty in 1790 and finally in 1795, executed by the principal chiefs and warriors both from Buffalo Creek and from the Grand River. By the terms of the latter treaty, in which, as we hold, the covenants of the prior treaties were merged " was agreed, to the satisfaction of the Cayuga Chiefs, that annual payments would be deposited at Canandaigua for the Cayuga nation."

Basic to the decision to award one hundred thousand dollars to the Cayuga Nation in 1926 was the determination that the "treaties" of 1789, 1790, and 1795 were "merged". Only by recognizing that the "treaty" of 1789 had been voided by the "treaties of 1790 and 1795 could there be grounds for the annual annuities. It was the cessation of payments of those annuities to the Cayuga Nation that brought about the award in 1926. When the United States Congress and the President made payment to the Cayuga Nation, as directed by the Tribunal, it was far more than "implicit" recognition of the validity of the 1790 and 1795 contracts between the State of New York and the Cayuga Nation. It was explicit recognition of what the Tribunal described as the merger of the three "treaties". There would have been no basis for payment, if Congress and the President had not recognized the validity of the Tribunal's decision that the three treaties were merged; that the "treaties" of 1790 and 1795 were but amendments to the "treaty" of 1789, whereby, at the demand of the Cayuga Nation, payments took the place of a grant of land. The nineteenth century payments to the Cayuga Nation, and the later 1926 award, were recognized as adjustments to the "treaty" of 789, whereby the Cayuga Nation received annuities in place of the land it did not want. If the merged treaties received only implicit recognition, it cannot be claimed that the 1789 "treaty" which New York representatives mistakenly believed they were signing with the Cayuga Nation has explicit recognition. By the decision of the Tribunal in 1926, and by the acceptance of that decision by Congress and the President, the merged contract has received either implicit or explicit recognition of its validity.

Declaring recognition of but one part of the merged contract to be explicit and the other parts to be implicit, is at the very least questionable. Certainly, such action would never hold up under international law. However, if these are not treaties, but only contracts, international law does not apply. Interests responsible for putting forward and backing Cayuga claims in the 1990's cannot have it both ways. Either these agreements are not treaties, but contracts, and, therefore, can be challenged in court, or they are treaties and cannot be so challenged. Choosing to take the matter to court is explicit recognition of the agreements of 1789, 1790, and 1795 as contracts, not treaties.

Outside interests, which have packaged the 1990's claims and persuaded the 380 Cayugas residing near Lake Cayuga to lend their name to the litigation, are anxious to claim the "treaty" of 1789 valid because it was signed before the Constitution was ratified. They have claimed that the Trade and Intercourse Act of the first Congress in 1790 prohibited the signing of further "treaties" with Indians and. Therefore, conveniently the amendments to the 1789 contract are not valid.

In this latter case, the fact that the "treaty" of 1790 was signed before Congress passed the Trade and Intercourse Act has been dismissed as irrelevant and not an ex post facto application of that 1790 Act in that the Constitution had been ratified. The Cayugas’ attorneys claim that even though the Act was passed by Congress after the signing of the 1790 "treaty", it is applicable because New York had become a state of the Union and was subject to all laws of the United States. If the interests spurring the 380 local Cayuga to make their claim in the 1990's are willing to ignore this inconsistency on the basis of what they claim to be the intent of Congress, then that intent should be carefully examined as well as the actual intent of the Non-Intercourse Act of March 1, 1973.

The Act of 1790 declared:

"No sale of lands made by Indians, or any nation, or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States."

Dates become extremely important. Cayuga claimants call for recognition of the agreement of 1789, signed by representatives of the then sovereign State of New York who were under the mistaken impression that they were negotiating with representatives of the Cayuga Nation, but demand denial of recognition of amendments made to that contract as soon as the legitimate Cayuga Chiefs were able to gather at Fort Stanwix the following spring, even though the Trade and Intercourse Act had not yet been passed by Congress. This battle of technicalities is not hampered by consistency.

Historians might well be consulted when it comes to analyzing intent. What was the intent of Congress in 1790 and 1793? A map of State Claims to Western Lands is quite revealing. At the end of the Revolution and through the first three years of the new United States (1783-1802) Virginia claimed lands stretching from the Atlantic coast to the Mississippi River, including what is today Kentucky. It further claimed the land from the western shores of Lake Huron to the Lake of the Woods (well beyond Lake Superior) which is today most of Michigan, Wisconsin, and Minnesota. Massachusetts claimed the remaining parts of what is today Michigan and Wisconsin, and a part of Minnesota. Massachusetts also claimed part of western New York. North Carolina claimed what is now Tennessee. Georgia claimed what is today Alabama. Connecticut claimed that land from the western border of Pennsylvania to the Mississippi that lay between the southern border of the Massachusetts claim and the northern border of what is today Virginia and Kentucky.

If claims of western lands were substantiated through state or individual purchase of land from Indians, some states would become large enough to challenge the authority of the federal government or even to declare independence whenever they might disagree with the new federal government. Delaware, New Jersey, New York, Rhode Island, Vermont, and New Hampshire, would be overwhelmed in Congress, if the population of states expanding to the west swelled proportionately. Framers of the Act were not concerned about adjustments of already accepted agreements with Indians who were legal units of states, such as in the case of the Cayugas and New York State. This was not, in 1790, legislation to protect the rights of Indians. Interpretations of intent, when in the one hand applied to Congress in passing the Intercourse Act of 1790 and on the other hand applied to the State of New York in concluding contracts in 1789, 1790, and 1795, in no way exemplify consistency.

As early as 1784, Thomas Jefferson chaired a committee which recommended to the Continental Congress that the lands between the Appalachians and the Mississippi be divided into sixteen states. This was II incorporated into the Land Ordinance of 1785.[17] When the Revolution ended, de facto governments had already been established by frontier families in territories which they declared to be new sovereign States. When the Constitution was ratified, it was obvious that one of the infant Congress' first tasks was to put a halt to all expansion west of the Appalachians not authorized by the new federal government. This required that purchase of land from Indians in these western territories could only be made with approval of the federal government.

During the Revolution, Maryland had acted as a "spokesman" for the states without western claims, presenting a resolution to the Continental Congress in which she stated:

"If wrested from the common enemy by the blood and treasure of the thirteen states, should be considered as common property, subject to be parceled out by Congress into free and independent governments."

"The states which hoped to use their Western lands to finance the war and reward their soldiers did not appreciate the idea of pooling them; and the resolution did not pass. Until they should feel more generous Maryland refused to ratify the Articles of Confederation, and thereby rendered a great service to the nation.”[18]

"In 1780, (fifth year of the Revolution) New York led the way by ceding her claims to Western land~ to the United States.“[19] Other states. However, renewed their claims to Western lands at the conclusion of the war. New York also led in establishing fairness in dealings with Indians and in appointing Commissioners to promote friendship between New York and Indian Nations.

The Trade and Intercourse Act of 1790 was never intended to be a permanent document; only a measure to gain time, to temporarily halt Western expansion of states or the creation of non- authorized states in land West of the Appalachians.[20] It specifically stated:

"This act shall be in force for the term of two years and from thence to the end of the next session of Congress, and no longer."

In 1793, caught between pressures of states like Virginia to expand westward and Congress' own plans to create new states in those same areas west of the Appalachians, Congress passed what has become known as the Non-Intercourse Act in which it stated:

"No purchase, grant, lease or other conveyance of lands, or any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such a treaty or convention, directly or indirectly or to treat with any such nation or tribe of Indians for the title or purchase of any lands held by them or claimed, is liable to a penalty of $1,000.

With Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with the Indians for compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.[21]

Obviously this was never intended to apply to contracts within the boundaries of states, which were not seeking to expand through purchases of Indian lands between the Appalachians and the Mississippi River. Of particular note is the phrase permitting states "to propose to, and adjust with Indians for the compensation to be made for their claims to lands within the State. " The "treaties" of 1790 and 1795 were such adjustments

The United States Indian Agent was present during the negotiation and signing of the 1795 contract. More than two hundred years later, a technicality has been cited. Because the New York negotiators did not deem it necessary to ask him to co-sign the document, it is now claimed by the interests promoting the Cayuga claim that he was, therefore, only a witness in a personal and not an official capacity. Had the negotiators but asked him to add his signature at that time there would have been no litigation in the Federal Court in the 1990's.

Any errors on the part of the Cayugas, such as two dozen local families falsely representing themselves as competent to sign a 1789 "treaty" binding the entire Cayuga Nation are arbitrarily dismissed in court proceedings of the 1990's. After all, supporters of the Cayugas say, that happened two hundred and ten years ago on the forested frontier, and negotiations in bad faith by those dissident families who had left the Cayuga Nation should be excused. On the other hand, frontier New Yorkers negotiating in good faith in 1795 are expected to have noted a loophole, namely absence of their request for the Indian Agent's signature on the document he had just witnessed.[22] This technicality, this omission by Frontier negotiators (and even Albany was on the edge of the frontier in 1790), most with no more legal training than the army officers signing treaties with Western Indians as late as the 1870's,[23] in contrast to the "technical" error on the part of the Cayugas is not excused by the Court two hundred and ten years later.

The reported remark of a United States Justice Department official visiting the Seneca Falls area raises questions as to the impartiality of a federal department, which is supposed to assure fairness (justice) for all citizens. He is reported to have said: "New York screwed the Cayugas in 1790, and New York is trying to screw the Cayugas in the 1990's's, and we're here to stop New York from screwing them again." This remark displays a remarkable lack of knowledge of American history, and certainly a lack of objectivity.

The report of the United States-British arbitral Tribunal of 1926 decision noted:

"When a situation legally so anomalous is presented, recourse must be had to generally recognized principles of justice and fair dealing in order to determine the rights of the individuals involved. The same considerations of equity that have repeatedly been invoked by the courts where strict regard to the legal personality of a corporation would lend to inequitable results or to results contrary to legal policy, may be invoked here. In such cases courts have not hesitated to look beyond the legal person and consider the human individuals who were the real beneficiaries. Those considerations are even more cogent when we are dealing with Indians in a state of pupilage toward the sovereign with whom they were treating."

"There is more warrant for doing so under the terms of the treaty by virtue of which we are sitting. It provides that decision shall be made in accordance with principles of international law and of equity. ... It is significant that the present treaty uses the phrase 'principles of international law and equity.' When used in a general arbitration treaty, this can only mean to provide for the possibility of anomalous cases such as the present."

The treaty referred to as the "treaty by virtue of which we are sitting" is an arbitration treaty. The Tribunal specifically cited three arbitration treaties between Great Britain and the United States for the authority under which their decision was reached. These are treaties ratified by the United States Senate. The Tribunal's decision was, therefore binding upon the United States, and that decision was based on the determination that the "treaties" of 1789, 1790, and 1795 were a merged covenant. To consider otherwise at this point in time can be construed as a violation of international law as well as domestic law. In regard to the provisions of arbitration treaties the Tribunal in 1926 further stated:

"An examination of the provisions of arbitration treaties shows a recognition that something more than strict law must be used in the grounds of decision of arbitral tribunals in certain cases; that there are cases in which -like the courts of the land -these tribunals must find the grounds of decision, must find the right and the law, in general considerations of justice, equity, and right dealing guided by legal analogies and by the spirit and the received principles of international law ... "


Numerous so-labeled treaties and other agreements entered into well into the twentieth century have been declared irrelevant or invalid, because only the "treaty of 1789” is recognized by the Court. The above discussion, therefore, has been confined to the merged contracts of 1789, 1790, and 1795, and has not included those later agreements. A summary of the points made above indicates several serious points for further consideration.

1. Although the status of the American Indian as de facto wards of the federal government based on long years of "pupilage" is not disputed, this does not alter their status as a legal unit of the State of New York at the time of the signing of the contracts or at the time of the international arbitration in 1926. If interests supporting the Cayuga claims of the 1990's claim otherwise and insist that the contract of 1789 was a treaty, they must also note that treaties can only be between sovereign States. If such were to be upheld, Amendment XI of the United States Constitution would appear applicable. It states

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

How can the Cayuga supporters claim for the Cayugas the rights of a sovereign State in order to further their claim that the contract of 1789 was a valid Treaty, and at the same time claim the Cayuga were wards of the United States Government in order to make it possible to sue the State of New York as a non-sovereign State?

2. How can the relatively few Cayuga families choosing to live in New York, rather than with the legitimate Cayuga Nation now living in Canada, base their action on a claim that the contract of 1790 is not valid because it did not receive ratification by the United States Senate when contracts require no such ratification? Under all accepted international usage the term "treaty" was misused in 1790 and 1795.

3. The Revolution had not been popular. Enthusiasm for it had not swept the country. Along the Appalachians men had drifted further West in order to avoid participation in the conflict. Washington had found it extremely difficult to obtain sufficient men to fill the ranks of his tiny army. Those who responded to his call for volunteers usually brought their own guns, and pay days were irregular at best. To reward those volunteers, the Continental Congress granted 100 acres to each soldier serving as a private. In 1782, the last year of the American War for Independence, the New York legislature established military tracts. Each soldier of the rank of private was to receive 600 acres of land for his service to the country (500 acres beyond the grant passed by the Continental Congress). New York, where much of the revolution was fought, was rewarding those who had responded to Washington's call for volunteers.

The Board of Land Commissioners of the then sovereign State of New York in 1784 sold five and a half million acres of land. Additionally, veterans of the Revolution were awarded land by lot. The question arises as to whether, when the contract of 1789 was agreed upon by New York and the fewer than three dozen Cayuga families in central New York, the State mistakenly gave Cayugas title to land which had been legally reserved for Revolutionary War veterans. If so, how does this affect the validity of the 1789 contract?

4. It has been held that when President Coolidge and both houses of Congress added funds to the budget to pay the arbitral award of 1926 to the Cayuga Nation in Canada this was only implicit recognition of the validity of the “treaties" of 1790 and 1795. However, it also appears to have been explicit recognition of the treaty of 1789 as an amendable contract. Otherwise, on what was that payment based? "Unfairness" of payments to the Cayuga Nation was the basis of that claim and the award by the arbitral Tribunal. Those earlier “unfair" payments had been the result of the demand by the Cayuga Nation's Chiefs, Sachems, and warriors that the “treaty" of 1789 be amended. Agreement to make annual payments was an amendment to the contract of 1789. The United States Congress and President Coolidge treated this in such manner as to extend explicit recognition of the three contracts of 1789, 1790, and 1795 as a merged covenant, even as had the arbitral Tribunal.

5. The Cayuga Nation held no title to any land in the State of New York. Only the fewer than three dozen families who had dropped away from the tribe signed the so-called treaty of 1789. If telephones and automobiles had been available in 1789, the Cayuga Chiefs, Sachems, and warriors would have arrived in Albany immediately after the signing was announced, and the correction of the ”treaty" of 1789 would have taken place before the United States Constitution was adopted. The poor communication of those times meant months passed while word trickled to the Cayuga Chiefs, while their demands for a revision of the "treaty" were carried by hand to Albany, while New York responded to those demands, and while the Indians replied to those responses which resulted in an invitation to the Cayuga Nation to sit with New York negotiators at Fort Stanwix. All this communication was carried from one end of the forested state to the other, often on foot. After each message arrived either the Chiefs, Sachems, and warriors of the Nation had to gather to prepare a response, or New York legislators had to meet to discuss their responses. Spring and summer months passed and eventually winter set in making travel by foot across the length of New York's wilderness impossible before the Cayuga were able to arrive in Albany for the amending of the 1789 contract. Only the fact that the revisions were then made after the Constitution went into effect has made possible this attempt to seize land two hundred and ten years later.

6. Unlike some other Indian tribes, the Cayuga had no "ancestral lands". Driven into central New York by other Indians, they in turn drove out tribes to which that area was ancestral land. By the time of the Revolutionary War there were relatively few full-blood Cayugas. So many captive Hurons and Eries had been adopted into the tribe to replace warriors killed in raids throughout the Piedmont from New Jersey to Alabama that most of the tribe could no longer claim more than partial Cayuga lineage. After the Revolutionary War, Cayugas who remained in Ohio to block settlers on behalf of the British fell to fighting the Shawnee. Intermarrying further with Wyandottes, Delawares, Eries, Cherokees, and even Shawnee they eventually moved west to Wisconsin and later settled with Indians of other tribes, with whom they had intermarried, on the reservation land of tribes in Oklahoma.

In the Grand River area of Ontario, "about 1,500 descendants perpetuated the language and ceremonial life of the tribe" in the late twentieth century. "About 200 live among the Seneca, in Western New York, and perhaps 100 live in Oklahoma.“[24] Those Cayuga who chose to live with the Seneca, with whom the majority intermarried, paid the Seneca $800, for right to live forever on the Seneca reservation in Western New York's Cataraugus county. Both Seneca and Cayuga have also intermarried with non-Indians in Western New York. The Encyclopaedia Britannica, like other sources, does not include as Cayuga those who after well more than a century of living in Oklahoma have only a slight trace of Cayuga lineage and are considered as Indians of other tribes. This brings about the interesting question of how some 3,000 Cayuga from Oklahoma have been "discovered" in order to be added to the 380 Cayuga in New York as plaintiffs.

7. It is no secret that gambling interests have reportedly sought out mixed Indian groups too small to have had reservations. It is to the advantage of such interests to provide whatever funds are necessary to initiate suits for land. Only on reservations can gambling casinos be operated in states where gambling is illegal. This leads to the interesting question of how many of the 3,000 Indians now labeled Cayugas in Oklahoma would later be called members of a Cherokee or some other Indian tribe in future suits for land on which to build casinos in other states. Can an Indian whose lineage is traced to a half dozen different tribes be counted over and over again to support claims of a variety of tribes? Could these same Oklahoma "Cayugas" next year be Cherokees, or Wyandottes, or Delawares?

Few, if any, of these Indians with homes, children, and friends in Oklahoma would ever be likely to move back to central New York to live on a different reservation which has no schools, infirmaries, or other facilities available on the Oklahoma reservation. On the other hand, monthly checks from the percentages of a casino's revenue paid to the tribe would be most welcome. If such became the situation in the Cayuga Lake region, it would be surprising, if the number claiming to be Cayugas did not grow further. The Bureau of Indian Affairs might be well advised to do a bit of detective work to determine just who initiated these claims by a small group of Indians, not a part of the Cayuga Nation, and to determine whether they are being exploited by outside interests. The Bureau might well check to determine who first dredged this new cause out of the misty past and encouraged the Bureau to enter the litigation.

8. It is interesting to speculate whether, in the event a reservation was given to the Cayugas, the Algonquin descendants in Canada might sue the Cayuga for the land taken from their ancestors by the Cayuga. Because the Cayuga Nation which maintains the language and ceremonials of the Nation resides in Canada, not in New York, it would have even a stronger claim to any settlement made in the name of the Cayuga. Any settlement awarding the claimants land or money can in no way be considered an award to anyone other than a group of descendants of fewer than three dozen families which divorced themselves from the Cayuga

9. Nation more than two hundred years ago. Eisenhower College, a private institution, was by an act of Congress, signed by the President, named the National Memorial to former General and President Eisenhower. Was it the intent of Congress and the President to place that memorial on Indian land? Later Congress appropriated $10,000,000 for the further construction of buildings and operations of Eisenhower College in Seneca Falls. When Eisenhower College was absorbed by the Rochester Institute of Technology, the campus and its buildings became the property of the United States Government. Later the United States Government sold that land with its buildings to the New York Chiropractic College. Did the United States Government sell Indian lands to a private college?

* * ** * * * * * * * * * * * * *

Justice can never be administered in a vacuum. All controversies have roots. Justice cannot be administered impartially by mere examination of two current conflicting claims. Roots of the conflict must also be impartially examined and weighed. Justice is never achieved through a selective reading of the past.

;Warren L. Hickman served for thirteen years as Vice President for Academic Affairs at Eisenhower College in Seneca Falls, New York. His field of research and teaching is International Relations, and Diplomatic and Military History. He retired as Professor Emeritus from the Rochester Institute of Technology.

Dr. Hickman received his AB in International Relations from Colgate University; his MA in International Relations from Columbia University; and majoring in International Relations received the degree Docteur es Sciences Politiques from l'lnstitut Universitaire de Hautes Etudes Internationales of the Universite de Geneve, Switzerland. During World War II he served at Supreme Headquarters (SHAEF). He resides in Trumansburg in Tompkins County and owns no property within the area contested by the Cayugas or elsewhere in Seneca County. His interest in the current litigation, in which a remnant of the Cayugas who splintered from the Cayuga Nation have brought suit for land, was roused when it became apparent that the litigation centered around contracts misstitled "Treaties", which are international instruments.

[1] Admiral of the Ocean Sea, Samuel Eliot Morison, Little Brown, 1942


[2] See Smithsonian collection: James Mooney, The Aboriginal Population of America North of Mexico.


[3] Not the mythical Hiawatha of Long fellow's poem.


[4] The World of the American Indian, The National Geographic Society.


[5] Thomas Bailey, A Diplomatic History of the American People, p.20, Prentice Hall, 1980.


[6] Known in Europe as the War of the League of Augsburg, the War of Spanish Succession, the War of Austrian Succession, and the Seven Year's War.


[7] The Encyclopaedia Britannica. Also The World of the American Indian, op.cit. The Neutrals; were also known as the Attiwandaronk

 [8] Encyclopaedia Britannica.


[9] No available record indicates the reason why this very small band was dropped from the Cayuga Nation, which had moved out of Central New York. It would become obvious in 1790 that they were not accepted by the Chiefs as in any way representing the Cayuga Nation.


[10] "Congress" did not mean a central legislative body for the colonies. The term "congress" may refer to "the act or act of coming together," or a "formal meeting of delegates for discussion." Webster Collegiate Dictionary. The C.I.O., the Congress of Industrial Organizations, is a collection of member unions who are not bound by its decisions. Note the endorsement of a presidential candidate in 1999 by the AFL- CIO and the decision of two major unions to refrain from that endorsement.


[11] Federal Treaty Commissioner R. H. Gillet informed Commissioner of Indian Affairs C. A. Harris in 1832 that the Cayugas in central New York were a tribe consisting of 130 individuals. When considering family units of parents, children and elderly, this would have meant fewer than three dozen families were represented in the contract signed under the title of Treaty in 1789.


[12] The equivalent of a square measuring ten miles by ten miles.


[13] Indians were not the only British allies to move to Canada. Some 80,000 American Tories also left the United States, most for homes in Canada. Bailey, Thomas, op. cit., p.49.


[14] In those days it was indeed a fortunate settler who ever accumulated several coins in a lifetime to bury beneath his hearth.

 [15] Each retained its sovereignty as an independent State until it ratified the Constitution. New York, the 11th State to ratify the Constitution feared for its rights within a federation. Only when Hamilton threatened to have New York City detached from New York State did the New York convention ratify the federal Constitution, and then only by a vote of 30-27. Until then New York retained it’s sovereign right to contract with Indians or sign treaties with foreign States.


[16] U.S. Treaty Series, No. 881.


[17] The Growth of the American Republic, Vol. 1, (1000-1865), Samuel Eliot Morison and Henry Steele Comrnager. D.261.


 [18] Ibid., pp. 259-260


[19] Morison and Cornmager, op.cit., p. 260.


[20] As late as 1806, former Vice President Aaron Burr attempted to set up his own empire west of the Appalachians with hoped for financing by the British and Spanish. This would have required purchasing land from the Indians. From the Spanish point of view this would create a buffer between the young energetic and ambitious United States and their colony of Louisiana. For the British it would block westward expansion of the new United States.


[21] Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Kentucky, Tennessee, Alabama, and Mississippi were later created by the United States in those territories claimed by Virginia, Massachusetts, Connecticut, North Carolina, and Georgia as late as 1802.


[22] Cayugas claim the Indian Agent was present at the request of the Cayuga Chiefs and Sachems to assure they received fair treatment. Obviously, this required him to be an adviser, therefore a participant in all but the signing of the final document.


[23] During the Civil War, storekeepers, other merchants, owners of large farms, and others with the financial means bought commissions with ranks as high as colonel. After the war some of these as well as men who had risen from the ranks to commissions remained in the army and were stationed at forts throughout the West. Often it was these officers, accompanied by corrupt Indian Agents who had purchased their commissions for the profit to be made from stealing and selling supplies intended for use on reservations, who drafted "treaties" with Indians, which are today considered valid.


[24] Encylopaedia Britannica.


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