El surgimiento de la dimensión “Sluggish Cognitive Tempo”

In 1785, Thomas Jefferson helped create the first law governing federal lands. The Land Ordinance of 1785 laid out a plan for the expansive territory that the federal government came to own as states ceded their land claims. Long hailed by historians as the origin point for the federal land system, the law envisioned transforming vacant public domain into rigidly rectangular parcels, divided by federal surveyors into lines that hewed to the four points of the compass, which would then be sold at public auction. 1

In practice, as Thomas Jefferson soon discovered, the federal government had obtained more a property morass than a public domain. Six years after the Ordinance, Jefferson, now serving as Secretary of State in a new federal government, sent a detailed document to President George Washington: “a report on the lands of the U.S. within the North Western and South Western territories, unclaimed either by Indians, or by citizens of these states.” Ostensibly intended to chart “the residuary unclaimed mass” of land that could be sold by the federal government, the report actually recorded the tangled state of ownership in the territories.2

1 _{Worthington Chauncey Ford, ed., Journals of the Continental Congress (Washington, D.C.: Government Printing Office, 1922), 28:}

375-81. For histories that stress the centrality of the 1785 Land Ordinance, see Paul W. Gates, History of Public Land Law Development (Washington: U.S. Govt. Print. Office, 1968), 59–74; Robert V. Hine and John Mack Faragher, Frontiers: A Short History of the American West (Yale University Press, 2007), 41–43; Peter S Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington: Indiana University Press, 1987), 21–43; Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York, Oxford University Press, 1968), 6–11. The rectangular survey in particular has received considerable scholarly attention: see, e.g., William David Pattison, “Beginnings of the American

Rectangular Land Survey System, 1784-1800,” (Ph.D. Dissertation, University of Chicago, 1957); Hildegard Binder Johnson, Order upon the Land: The U.S. Rectangular Land Survey and the Upper Mississippi Country, (New York: Oxford University Press, 1976); Andro Linklater, Measuring America: How the United States Was Shaped by the Greatest Land Sale in History (New York: Plume, 2003); Bill Hubbard, American Boundaries: The Nation, the States, the Rectangular Survey (Chicago: University of Chicago Press, 2009). There has also been a vigorous debate over Jefferson’s role in creating the Ordinance: while earlier scholarship asserted that Jefferson—a member of the committee assigned to craft the Ordinance—was its primary drafter, later scholars have challenged this claim. For an overview, see George W. Geib, “The Land Ordinance of 1785: A Bicentennial Review,” Indiana Magazine of History 81, no. 1 (March 1, 1985): 1–13.

2 _{“Report of the Secretary of State to the President,” November 8, 1791, in The Territorial Papers of the United States, Vol. IV, The}

Territory South of the River Ohio, 1790-1796, ed. Clarence Edward Carter (Washington: Government Printing Office, 1936) [hereinafter TP, Vol. IV], 85-100.

As measured by Jefferson’s report, the Land Ordinance of 1785 was a failure. Harassed by Natives who rejected Anglo-American assertions of ownership, federal surveyors had only slowly surveyed a small corner of the Northwest Territory known as the “Seven Ranges.” And only a portion of those lands—just over 150,000 acres—had actually been purchased.3

While federal policy floundered, the territories did not lie vacant and

“unclaimed.” On the contrary, Jefferson chronicled dozens of claims to territorial lands. Nearly all of the Southwest Territory still legally belonged to the Cherokee and

Chickasaw Nations; Native title had been “cleared,” in Jefferson’s parlance, only in two small regions. Jefferson estimated that every acre of this purchased land—as well as large tracts that the Cherokees and Chickasaws still owned under federal law—had been sold or granted by North Carolina, transactions the federal government was obligated to honor under the terms of North Carolina’s cession. Besides these claimants, there were also white settlers throughout the territory who asserted ownership “without Right or License.”4

The Northwest Territory was similar. The Delawares, Shawnees, Miamis, and other Native nations still owned most of the Territory. Treaties with these nations, with ill-defined boundaries, purported to sell some land to the federal government, but many Natives disputed their validity. Nonetheless, there were already myriad claimants for the purchased lands, as Jefferson traced: “Ancient Companies” (companies that had

3 _{Jefferson’s report put the amount sold at 150,896 acres. Ibid. Instances of Native resistance to surveying the Seven Ranges appear}

in “Message from the Indian Nations to the United States,” 1786, Indians of North America Collection, Burton Historical Collection, Detroit Public Library; George Brickell and Thomas Girty, “Deposition,” September 13, 1786, vol. 3, Josiah Harmar Papers, Clement Library, University of Michigan [hereinafter JHP]

purchased from the Indians before the Revolution), French villagers in the Illinois Country, the state of Connecticut, Moravian Indians, Canadian refugees, Revolutionary War veterans, and others. All told, claims by non-Natives amounted to 13 million acres of the land Virginia had ceded to the federal government.5

As Jefferson’s report demonstrated, though the Continental Congress may have envisioned the territories as vacant land awaiting transformation into a neat grid, neither the Northwest nor Southwest Territory was an empty space to be molded by federal policy. Both teemed with people who advanced myriad, and contested, property claims that predated federal involvement. In short, much of this new “federal” land was not only already owned but also purportedly owned several times over. But by focusing on the expansive “visions” of eastern policymakers and politicians, many historians of property have ignored the messy realities that lurked below this westward gaze.6

In both territories, the complicated tangle of claims Jefferson traced resulted from property pluralism—the proliferation of multiple sources of ownership with disputed legitimacy. Historians have often cast narratives of property in early America as a contest between vernacular, anti-statist “squatters” and positivist government officials and speculators. But the fight over property in the territories was not primarily a struggle

5_Ibid.

6 _{With the exceptions of “squatters,” standard histories of the federal land system, fixating on federal laws, have largely ignored the}

messy realities of sorting out land in the territories, particularly omitting any discussion of state or Native claims. See, e.g., Onuf, Statehood and Union, 21-43; Rohrbough, 6-11. For their part, historians of Native land rights have largely focused on Anglo- American definitions of Native ownership without exploring how those rights in turn shaped state and federal land systems in early America. Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, Mass: Belknap Press of Harvard University Press, 2005); Blake A. Watson, Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights (Norman: University of Oklahoma Press, 2012). To the extent a standard scholarly narrative exists, it assumes that the federal domain was “created” when states ceded their western lands—see, for instance, Merrill Jensen, “The Creation of the National Domain, 1781-1784,” The Mississippi Valley Historical Review 26, no. 3 (December 1939): 323. And the history of land in the Southwest Territory has received almost no scholarly attention, with the exception of a handful of specialist articles, including Thomas B. Jones, “The Public Lands of Tennessee,” Tennessee Historical Quarterly 27, no. 1 (April 1, 1968): 13–36; L. D. Smith, “Land Laws of Tennessee,” Tennessee Law Review 1 (1922): 30. There have, however, been studies of land speculation in the Southwest Territory: see Kristofer Ray, “Land Speculation, Popular Democracy, and Political Transformation on the Tennessee Frontier, 1780- 1800,” Tennessee Historical Quarterly 61, no. 3 (October 1, 2002): 161–81.

between customary norms sanctioned by long-standing community practice and formal statutory law. In practice, most of the sources of ownership on the frontier were neither deeply rooted nor informal. Most land claims in the territories were recent, stemming from the 1780s; the claims Jefferson labeled as “ancient” stretched all the way back to 1775. And although many of these claims reflected deep-seated views about property, nearly all had some grounding in positive law, especially state statutes; all claimants cared deeply about—and fought over—formal law. Even Native land rights, though grounded in immemorial usage, were refracted through Anglo-American statutes and precedent, and, for Anglo-Americans at least, increasingly rested on formal legal recognition.7

In short, the territories’ property pluralism resulted from too much, not too little, law. In the Revolution’s confusing aftermath, issues of jurisdiction and sovereignty remained highly unsettled. This was especially true west of the Appalachians, where grand if poorly defined abstractions such as federalism and Native nationhood overlaid local factionalism, producing schisms and secessionist movements. As a result,

throughout the 1780s multiple authorities all claimed, and exercised, authority over property law in what became the federal territories. These contending governments favored different claimants with differing concepts of ownership. Even as Native nations insisted on their sovereign land rights, expansionist states strongly endorsed the claims of

7 _{The narrative of customary practice prevailing over formal law implicitly forms the plotline of the most productive area of property}

law history in the early republic—the large body of work on “squatters.” This has been true both for historical monographs, see Andrew R. L Cayton, The Frontier Republic: Ideology and Politics in the Ohio Country, 1780-1825 (Kent, Ohio: Kent State University Press, 1986), 1-11; Onuf, Statehood and Union, 28-33; Reeve Huston, “Land Conflict and Land Policy in the United States, 1785-1841,” in The World of the Revolutionary American Republic: Land, Labor, and the Conflict for a Continent, ed. Andrew Shankman, The Routledge Worlds (New York: Routledge, 2014), 324–45; and for legal scholarship using this history to cast light on current property questions, see Eduardo Moisés Peñalver, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (New Haven: Yale University Press, 2010); Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000).

white settlers. State statutory schemes originally constructed to benefit smallholders were twisted by self-interested legislators to facilitate massive and dubious land grabs.8

Precisely because little was settled or well-established, the territories presented the fundamental question about which sources of ownership would be recognized and deemed legitimate in early America. As Jefferson’s report indicated, the responsibility for addressing this question ostensibly fell within the newly established jurisdiction of the federal government. But the federal government was hampered. State cessions shielded many land claims, even contingent future claims, from federal involvement. Just as substantially, the federal government was not monolithic, and legislators and officials disagreed fiercely over how federal title should be defined. Local disputes within the territories over the sources and nature of ownership found their echo in debates between cabinet officers and local territorial officials, or among members of Congress. The result of these diverging views was that federal land law often seemed inconsistent and

oscillating, as politicians debated which features of earlier land regimes to preserve and which to reject.

To the extent a federal land policy emerged from these contentions, its core was a strong preference for clarity, finality, and the absence of conflict—the administrative virtues. Abhorring the property disorder they watched unfold in the territories and throughout the early American borderlands, federal officials sought to use their

ownership of federal lands to craft explicit chains of title. Federal lands, one booster of

8 _{On the confusing scramble for jurisdiction over the early American West, see Peter S. Onuf, The Origins of the Federal Republic:}

Jurisdictional Controversies in the United States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983); Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge: Cambridge University Press, 2008), 11–47. Like other historians, Onuf emphasizes that state cessions resolved the jurisdictional controversies under the Articles.

the Northwest Territory optimistically if inaccurately wrote, had a “great advantage” over lands elsewhere: “the Title is indisputable.” Similarly, a senator from North Carolina argued that his state’s “cession is not nor ever has been viewed . . . as valuable to the [federal] government, but . . . only desireable in as much as the clashing claims and encroachments of the St[ates] on their Constitutional powers are thereby silenced and the government freed from the disgrace and expences enivitably attendant on disputes with the Indians.” The handful of land statutes the first Congress enacted reflected this embrace of clarity, particularly in Indian affairs.9

Yet even when the federal government could reach an agreement enshrined through formal law, it was still only minimally successful at recasting ownership in the territories. The property mess in the territories proved too tangled, and there were too many other legitimate sources of land law, for new concepts of ownership dictated from Philadelphia to succeed. Rather than a resolution, state cessions of the territorial property morass to the federal government marked merely the beginning of a decades-long

struggle over the source and nature of title in early America. * * *

As Jefferson’s report illustrated, title in early America began with Native nations, who owned the lands Anglo-Americans came to label the Northwest and Southwest Territories. These owners included, among others, the Cherokees who lived in the foothills of Blue Ridge Mountains, the Chickasaws who lived south and west of the

9 _{Samuel Holden Parsons to His Children, January 7, 1786, Folder 6, Samuel Parsons Papers, Connecticut Historical Society, Hartford,}

Conn.; Benjamin Hawkins to William Blount, April 24, 1792, Folder 4: 1792, William Blount Papers, Manuscript Division, Library of Congress [hereinafter WBP:LC]. Arguably the most important piece of land legislation enacted by the First Congress was the Trade and Intercourse Act, which barred private and state purchases of Indian land except at a federally sanctioned, public treaty. Act of July 22, 1790, 1 Stat. 137; see also discussion below.

Cumberland River, and the Wyandots, Miamis, Shawnees, and Delawares who lived along the rivers of present-day Ohio and Indiana.10

By the 1760s and 1770s, when the first Anglo-American settlers settled in the Indian country that would become the U.S. territories, earlier debates over the nature and validity of Native land claims had given way to the near-ubiquitous practice of

purchasing Native property rights. In the 1770s, the earliest settlers of Washington County, North Carolina, which became part of the Southwest Territory, recorded a series of individual purchases of land from the Cherokees. In Vincennes, a long-standing French settlement along the Wabash River in present-day Indiana, settlers routinely purchased lands from the local Piankeshaw Indians. An Anglo-American visitor to the town in 1789 noted that many of the town’s titles rested on “purchases made from Individual Indians.”11

The legal controversy over Indian land sales that came to engulf the U.S. territories, then, was not over whether Natives owned land that they could sell. Rather, during and after the Revolution, an intense debate raged over the meaning and nature of Native “consent” to land sales. Both Natives and Anglo-Americans regarded some indication of Native consent to a transaction necessary for it to be legally valid. But, despite widespread and shared use of the term “consent,” there was little agreement about what such consent required or what form it should take. Not only did Natives and Anglo- Americans often disagree, but, throughout the 1780s and ‘90s, Anglo-Americans also

10 _{For an overview of the histories of these diverse Native nations, see the prologue.}

11_{Records of Washington County Court of Pleas and Quarter Sessions, Volume Book 1, 1778-1798 (Nashville, Tenn.: Historical}

Records Survey, Works Progress Administration, 1938), 20; Indian Land Sale Contract, 20 May 1786, Doc. I.214, Lasselle Family Papers, L127, Indiana State Library, Manuscripts & Rare Books Division, Indianapolis, Ind.; Land Contract, 22 May 22, Doc. I.215, Lasselle Papers; “Report of Governor St. Clair to the Secretary of State,” February 10, 1791, in TP: Vol. II, 352-53. On the prevalence of purchasing land from the Indians from the seventeenth century onward, see Banner, How the Indians Lost Their Lands, 10-48.

fiercely struggled among themselves over how to define legitimate Native consent. This conflict manifested in three interrelated legal debates centered in the territories: the legality of private purchases from the Indians, the validity of the doctrine of conquest, and the extent of the federal obligation to conform to Native law on consent.

Cherokee, Delaware, and other Native nations’ concepts of consent appeared largely through the complaints they voiced to Anglo-Americans when they felt their norms had been violated. Despite their diversity, these nations shared fundamental structures of authority, and long interaction with Europeans had led to a strong sense of what a legitimate transaction looked like. By the late eighteenth century, Natives, like Anglo-Americans, insisted on written recordation of land sales. “Writings, when they are justly executed never Lye,” a group of Miamis told a federal official in reference to past land sales. “Let them therefore be respected.” Native representatives placed great

emphasis on what the “just execution” of such documents required. It was not enough for a treaty to be written; the terms of the agreement had to be fully explained and accurately translated to them for their consent to be valid. 12

Natives’ most substantial concern—one that caused endless frustration for Anglo- American interlocutors—was that those selling the land possess the proper authority to do so. Native political culture relied heavily on discussion among councils; one group of Cherokee representatives described how a land matter had been “fully discussed before

12 _{“A Journal of the Proceedings at a Council Held with the Indians of the Wabash and Illinois at Post Vincents, by Brigadier General}

Putnam,” October 1792, in Rowena Buell, ed., The Memoirs of Rufus Putnam and Certain Official Papers and Correspondence (Boston and New York: Houghton, Mifflin, 1903), 358 [hereinafter MRP]. For discussions of Native use of written records during this period, see Greg O’Brien, Choctaws in a Revolutionary Age, 1750-1830 (Lincoln: University of Nebraska Press, 2002), 65–66; Nancy Shoemaker, A Strange Likeness: Becoming Red and White in Eighteenth-Century North America (New York: Oxford University Press, 2004), 61-82.

147 chiefs” before a definitive resolution could be reached. In Native eyes, a land sale was only valid if those who entered it had the requisite authority to agree, and if a council subsequently ratified their actions. Without such endorsement, Native nations had not truly consented to the land sale. One Miami chief condemned the sale at the Treaty of Fort Harmar of 1789, which, he observed, had been made not by “chiefs, neither

delegates” but by “only young men without authority and instruction from their chiefs”; consequently, the sale would “not be approved.” An Indian agent in Cherokee territory noted that another purported sale was almost certainly invalid, as none of the “principal Chiefs, knows anything of the matter.”13

The allocation of authority within tribes was central to Native conceptions of consent. Most nations of the eastern woodlands divided authority between chiefs, who exercised control over peacetime affairs, and the “warriors” or “war chiefs,” who governed military matters. Anglo-Americans well-versed in Indian affairs understood