Lewis and Clark, “Discovery,” and the Indian Tribes

“[T]he dispatch of the Lewis and Clark expedition was an act of imperial policy.”**

On August 3, 1804, Lewis and Clark held the first tribal council of their expedition.[1]  Being the first, this council set the pattern for all that followed; thus Lewis carefully prepared a detailed speech because he knew he would repeat it many times, to many different tribes.[2]  In explaining the expedition’s mission to the Otoe and Missouri delegation, Lewis “proclaim[ed] American sovereignty and the coming of new traders.”[3]  Lewis told the Indians that Thomas Jefferson was now their “father,” that they were his “children,” and that there had been a change of government in the Louisiana Territory.[4]  In fact, Lewis explained to the Otoe and Missouri that their old fathers, the French and the Spanish, had sailed away, never to return.[5]  Lewis and Clark even began making “chiefs” by distributing Jefferson peace medals, American flags, and military uniforms to various Indians.[6]  They told the Otoe and Missouri to surrender any similar objects they had received from other nations because now that they had accepted the American medals and flags it signified that the Indians were accepting American sovereignty.[7]  Lewis strongly emphasized to the Otoe and Missouri, and later made the same point to all the Indians he encountered, that the tribes now had to deal with a new sovereign entity in the Louisiana Territory; the United States.  Why did Meriwether Lewis, and Thomas Jefferson for that matter, think that the United States had gained such authority over these independent Indian nations due to the Louisiana Purchase?

            The Lewis and Clark Expedition is one of the great sagas of American history.  Even more attention will be given to the Expedition as its two hundred year anniversary is commemorated in 2004-2006.  A complete and accurate history of the Expedition, however, must include the primary role played by Indians and tribes in its objectives and success, and the enduring legal effects Lewis and Clark, the expansion of the American empire, and the Doctrine of “Discovery” had on Indians and tribes in the Louisiana Territory and the Pacific Northwest.[8]

            Lewis and Clark and the Indian Tribes

            Indian and tribal affairs were the primary motivations for the Expedition.  Furthermore, establishing the United States’ political and economic relations with tribes was the primary objective of the Expedition.  President Jefferson himself highlighted these motivations and objectives and the importance of tribes to the Expedition in his January 1803 message to Congress seeking authorization for the voyage, and in his June 20, 1803 and January 22, 1804 letters of instruction to Lewis.[9]  I address each of Jefferson’s objectives separately.

            A.  Northwest Passage

            Jefferson’s first objective for the Expedition was to find the famed, yet elusive, water route across the continent.  Jefferson alluded to this goal to Congress in January 1803 but he plainly directed Lewis to seek the Passage as the first objective of the voyage.[10]  Jefferson sought the Northwest Passage because it would create an American fur trade with China.  This venture intimately involved Indians and tribes because Jefferson wanted to induce Indians to trade their furs at frontier posts the United States would establish and hoped that tribes would also allow American fur traders to operate in tribal territories.  These furs would then be transported to China via the Northwest Passage and an American port on the Columbia River.[11]

            Besides providing the majority of the furs, Indians and tribes were also crucial to this plan because the Expedition, and any Northwest Passage, would pass through the territory of dozens of tribes.  Thus, dealing with these tribes, making them amenable to the Expedition itself, and gaining their cooperation in the fur trade was crucial to the use of a Northwest Passage.  Jefferson specifically instructed Lewis to make friends of the tribes based on this realization.[12]

            B. Commercial dealings with tribes

            Jefferson’s second objective, as he told Congress and Lewis, was to extend American commerce to the Indians and tribes in the Louisiana Territory.  Jefferson thought the United States was well placed to greatly expand its fur trade and the sale of American goods in this area.[13]

                Official governmentally conducted trading with Indians was nothing new in 1803 when Jefferson asked Congress to authorize the Expedition.  The United States had been operating frontier posts for the sole purpose of trading with Indians ever since George Washington proposed federal trading houses and Congress funded their operation in 1795.[14] Lewis’ assignment to take U.S. commerce to the Louisiana Territory was just a natural extension of this official Indian economic policy.  Consequently, the trade goods Lewis and Clark took with them were partially designed to demonstrate the wide range of goods the U.S. could provide Indians as a trading partner and to entice Indian tribes to become part of the United States economic market.

C.   Science and ethnography

            Jefferson’s personal objective for the Expedition was the “Enlightenment Era” goal of exploring the Louisiana Territory for the purpose of gaining scientific knowledge.  Sacagawea and other Indians assisted Lewis & Clark in meeting this objective.  They occasionally helped Lewis make new plant and animal discoveries, and they often helped Clark with geographical information necessary to draft his maps.

            Most importantly, however, Jefferson wanted Lewis & Clark to closely study the Indians and the tribes.[15]  Jefferson, Lewis, and Philadelphia scientists prepared a questionnaire seeking ethnographic information and a vocabulary list of words to be asked of each tribe.  The information Jefferson wanted collected concerned tribal life, ancestry, customs, religion, territory, diplomatic relations, and more.[16]  Lewis & Clark spent a significant amount of time gathering information for these vocabularies and questionnaires.[17]

            D.  United States sovereignty

            Jefferson’s fourth objective was for Lewis & Clark to extend the United States’ dominion and sovereignty over the newly purchased Louisiana Territory and the indigenous tribes.  Thus, Lewis & Clark were diplomatic representatives of the United States, and they spread the news of the U.S. purchase of the Territory and its new role as the controlling non-Indian government in the Territory.  This objective is less well known than the others because it only developed after Lewis had already begun the first leg of the voyage.

            The United States had not yet purchased the Louisiana Territory when Jefferson issued his instructions to Lewis on June 20, 1803.  At that time, the U.S. had no governmental authority in the Louisiana Territory.  In fact, Jefferson had requested passports for Lewis & Clark from England, France, and Spain to explore the Louisiana Territory, ostensibly for scientific purposes only.[18]  However, after the news arrived in Washington D.C. on July 4, 1803 that the U.S. had purchased the Territory, an additional and very significant new objective developed for the Expedition.  This new objective entailed exercising the United States sovereign authority over the tribes and their lands in the Louisiana Territory.  Thus, Jefferson instructed Lewis about this matter in his January 22, 1804 letter.[19]  Lewis & Clark were now, more than ever, agents of American empire carrying the United States’ power into the newly purchased Territory.  They fulfilled this charge and delivered a strong message to tribes and foreign citizens that President Jefferson was now the “Great White Father” of all the Indian “children” and that the United States was exercising its sovereignty over all persons and property in the Territory.

            E.  Tribal contributions to the Expedition’s success

            Lewis & Clark would not have succeeded and might not even have survived without the assistance, supplies, and guidance of individual Indians and tribes.  Jefferson and Lewis & Clark realized this fact from the beginning.  In fact, commentators agree that Lewis & Clark would not have survived their first winter of 1804-05 in present day North Dakota without the abundant supplies of Mandan corn, and they would never have made it through the winter of 1805-06 at the Pacific Ocean if the Clatsop and Chinook Indians had not provided them with food.[20]

            Other tribes also helped Lewis & Clark.  The Hidatsas, for example, gave them valuable information regarding the route to the headwaters of the Missouri River.  The Shoshone and Salish Tribes sold Lewis & Clark horses and provided a Shoshone guide to cross the Bitterroot Mountains into present day Idaho.[21]  Lewis & Clark would never have made a successful crossing without horses and a guide.  In addition, after they barely made it alive across the mountains, the Nez Perce Tribe saved them by providing food and by not killing Lewis & Clark, as some Nez Perce discussed.  According to tribal history, a Nez Perce woman convinced the tribe not to kill the explorers.  Several Nez Perce chiefs then led Lewis & Clark down the Clearwater, Snake, and Columbia Rivers and introduced them to tribes along the way, while another chief stored their horses awaiting their return.  Lewis & Clark lived on food they purchased from Indians all along this portion of the voyage.  On the return trip, Nez Perce guides led them quickly and safely through the Bitterroots.  Lewis and Clark both wrote that without the Indian guides they would not have made it across the mountains even though they had already once traveled that route.[22]  Clearly, Indians and tribes significantly aided the survival and the success of the Expedition.

            The Doctrine of Discovery[23]

            The “Corps of Discovery” is a fitting name for the Expedition because Lewis & Clark assisted the United States in exercising its sovereignty over the Louisiana Territory under the authority of a European legal principle called the Doctrine of Discovery.  The Doctrine had long rationalized the domination and outright conquest of indigenous, non-christian, non-white populations and their lands by European countries.  The audacity of a country “discovering” and claiming property rights in lands already occupied and used by others was generally justified by the “different” religions and customs of the natives, their “wasteful” use of land, and the principle of “terra nullius,” which provided that since natives did not use land like Europeans, then the land was considered “empty” and could be taken by Europeans.  The very first legal attempt to use the Doctrine was based on these rationalizations.  In 1493, Pope Alexander VI divided the world into spheres of “discovery” and influence for Portugal and Spain to engage in commerce, conquest, and religious conversion.[24]  These same themes were adopted into the developing English legal theories of discovery formulated from the mid-1500s forward.[25]

            The Doctrine provided that the first European country that “discovered” territory not yet found by any other European country gained an interest in the natives’ property and gained certain sovereign rights over the natives.  The property interest was similar to an exclusive option to buy the land and gave the European government the sole right to acquire the land, whenever the natives desired to sell.  Thus, indigenous peoples lost, without their knowledge or their consent, some of their “natural law” property rights; they lost the right of free alienation, that is, the right to sell their land to whomever they wished and at whatever price they could obtain.  The Doctrine did provide, however, that the indigenous people retained valuable occupancy and use rights in their lands.  Due to Discovery, native peoples also lost some of their inherent sovereignty and the power to interact in the international arena and to deal with multiple foreign countries because the Doctrine limited “discovered” peoples to dealing internationally only with the European country that first discovered them.

            Europeans also enforced the Doctrine among themselves.  In fact, it is considered one of the earliest examples of international law because European countries usually agreed that the discovering country gained a protectible property right in newly discovered territories to the exclusion of other countries.  They sometimes, however, disagreed over the exact definition and the legal underpinnings of Discovery, and they did occasionally wage wars with each other over new territories.  But one thing they never disagreed about was that native, non-christian, non-European people lost valuable property and sovereign rights to whichever European government held the “Discovery” power.

            In 1823, in Johnson v. M’Intosh,[26] the United States Supreme Court adopted the Doctrine into federal case law.  The case involved a dispute between Americans who had bought land directly from Indian tribes and other Americans who purchased the same land from the United States after it acquired the land from the same tribes.  The Court held that the U.S. possessed the Discovery power over the tribes and thus they could only legally sell their lands to the United States.[27]  The tribes possessed only the use and occupancy property rights in their lands and had lost the right to sell their lands to whomever they wished.

            In upholding the power of discovery, the Court seemed conflicted about the Indians’ natural rights to their lands.  In fact, the Court refused to answer its own question why “agriculturists, merchants and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.”[28]  Instead, in determining tribal rights to sell land, the Court relied on the Doctrine of Discovery and stated “Conquest gives a title which the Courts of the conqueror cannot deny . . . .”[29]

            Interestingly, long before the U.S. Supreme Court adopted Discovery, American law had been shaped by the Doctrine.  Before Johnson, colonial, state, and federal court cases just assumed that some legal principle had already limited tribal and Indian ownership of land.[30]  Moreover, numerous American colonies and states had enacted laws that expressly limited tribal and Indian ownership rights in land.[31]  President Jefferson also demonstrated his understanding and agreement with the Doctrine when he wrote in 1804 and 1808 that even after buying and becoming the sovereign of the Louisiana Territory the United States still had to purchase the land titles of the “native proprietors” and that the Purchase had not diminished tribal occupancy rights.[32]  Thus, he understood what the United States had purchased from France: the Doctrine of Discovery power; the position as the discovering nation; and the exclusive right to be the only government that could buy tribal lands in the Louisiana Territory.  The United States had obviously not purchased the entire fee simple title to these lands from France because the subsequent history shows that the United States spent the next one hundred years buying land from the tribes in the Louisiana Territory through formal treaties even after the U.S. had purchased the Discovery power from France.[33]

Exercise of U.S. Sovereignty & Empire in the Louisiana Territory and Pacific NW

            Many commentators have argued convincingly that Jefferson was planning an American empire that would cross the continent and include the Pacific Northwest.[34]  He clearly had the Doctrine of Discovery in mind when he wrote Lewis that the United States had become the sovereign of the tribes in the Louisiana Territory.  He also had the Doctrine in mind when he sent Lewis & Clark to the Pacific Northwest because he wanted them to strengthen the United States’ Discovery claim to the Columbia River and to occupy the area before the English did.[35]  Moreover, Jefferson had an American empire in mind for the Louisiana Territory and he was not going to let Indian tribes stand in the way.[36]

            When Lewis & Clark traveled through the Louisiana Territory, and especially when they left American soil and entered the Pacific Northwest, they operated as agents of American empire under the Doctrine of Discovery.[37]  Lewis & Clark performed numerous tasks that demonstrated the exercise of American sovereignty and empire in the Territory, and U.S. claims of Discovery to the Pacific Northwest.  The following list briefly describes the “imperial” actions Lewis & Clark undertook towards the tribes west of the Mississippi.

            1.  Lewis & Clark distributed “sovereignty tokens” of American flags, military uniforms, and Jefferson Peace Medals.  These items were given to important tribal chiefs and conveyed the message of American sovereignty and tribal allegiance to the United States.[38]  Lewis & Clark occasionally told chiefs to surrender similar tokens they had received from other countries to show that their allegiance was now only to the United States.[39]  Other American expeditions to the Louisiana Territory tribes undertook even more overt actions and would not distribute American peace medals until the chiefs surrendered their European ones.

            2.  Lewis & Clark emphasized to every Indian they encountered that President Jefferson was their new “Great White Father” and that the Indians were his “children.”[40]  What stronger message of American sovereignty and empire over tribes and Indians could they have delivered?

            3.  Lewis & Clark organized visits of tribal chiefs to Washington, D.C. to meet Jefferson. Members of up to 26 tribes ultimately went to D.C. at Lewis & Clark’s invitation.  These visits were designed to impress and intimidate Indians with the immense power and size of the U.S.

            4.  Lewis & Clark arrogantly usurped the authority to alter the political situations of

the tribes.  They held councils in which they encouraged tribes to make peace because the

United States wanted peace to facilitate American goals regarding hegemony and trade.

            5.  Lewis & Clark actively worked to develop the American fur trade by getting tribes to serve American interests.  They consulted with tribes on the best locations for U.S. trading posts to bring tribes within the American economic sphere.  They even promised U.S. trade with the Shoshone, Nez Perce, and other tribes that were outside the Louisiana Territory.  This demonstrates further the “imperial” reach of the Expedition to areas that were then outside the United States.  The Pacific Northwest was claimed at that time by Spain, Russia, England, and the United States, and was not within the Louisiana Territory the U.S. had purchased from France.

            6.  While they downplayed these elements of American domination at this early date, Lewis & Clark lost no opportunity to inform tribes of the superiority of the United States, its civilization, culture, and religion over tribal ways.

            7.  Lewis & Clark advanced America’s Discovery claim to the Pacific Northwest.  Both the U.S. and England had nearly identical Discovery claims to the area, and the race was on to solidify the claims.  Lewis & Clark helped establish America’s claim by hanging rosters of their men and announcements of their trip to the Pacific Ocean in Fort Clatsop and by leaving them with Clatsop and Chinook chiefs in what is now Oregon and Washington.[41]   They directed these chiefs to show the documents to any Europeans that visited the area.[42]    Lewis & Clark also branded and carved their names on trees and used powder and red paint to make other markings.[43]  These actions were all performed as part of the recognized ritual of making Discovery claims and to buttress the United States’ Discovery claim to the Columbia River and the Pacific Northwest.[44]

            Legal effects of the Expedition

            The subjugation of Indian legal and commercial rights was one of the primary results of the expansion of the American empire.  This subjugation also occurred in the Louisiana Territory as the United States claimed its Discovery power over the people and lands within the Territory, and as it made concrete plans to begin exercising that authority.  After the Discovery Doctrine limited tribal sovereign and property rights, Jefferson worked to pacify Indians and convince them that the U.S. was not lusting for their lands while at the same time he planned to assimilate Indians, remove them from America’s path, and exterminate them if necessary.[45]  The Lewis & Clark Expedition carried the Discovery power with it into the Louisiana Territory and was the forerunner of these subsequent federal Indian policies.

            Consequently, tribes lost valuable governmental and legal property rights without their consent, without their knowledge, and for which they were never fully compensated.  The United States’ domination of tribes and Indians ultimately led to official policies of forced relocations and assimilation, the reservation system, and the termination of tribal governmental status.  The cultural, religious, family, and governmental oppression that Indian people have suffered since the Expedition have led to well documented social, economic, and governmental pathologies.

            Conclusion

            The Lewis & Clark Expedition was deeply involved in Indian affairs, in federal Indian policies, and in exercising the United States’ sovereignty and empire over the tribes under the Doctrine of Discovery.  To more completely understand the full import of the Lewis & Clark Expedition, the Corps of “Discovery,” one must understand the Indian influence on the Expedition and the legal impact of the Expedition on tribal sovereignty and property rights.