they were sure. But the Indian guide was worried. The night before, the sailors had departed without offering the formal goodbye required by Powhatan diplomacy. They could be excused that once—they were new, after all. But the guide had to show them how to behave this time around, or risk offense to the king.
Raising his voice over the steady roar of the falls, the guide made a quick demonstration of proper protocol. It was simple. When the king arrived, they were to shout in unison. When he left, they were to shout again, bringing things to a close. The shout, a simple rhythmic cadence, was easy to learn. It felt familiar to the sailors, who did the same thing for important people in England. When the king finally appeared, they followed the guide’s example, shouting a happy welcome. And later, when he turned to go home, they did it again, “two severall times,” and the Indians “answer[ed] [their] shout with gladnes in a friendly fashion.”2 In some ways, the day had not gone well. The king had politely rebuffed their request to travel farther upriver, and the sailors were no longer so confident. But the shouting seemed to leave things on good terms. As they sailed home to the newly built fort at Jamestown, they were sure the king was their friend.
At some point in the days following the meeting at the falls, Gabriel Archer, the secretary of the settlement venture, sat down to compose an account of the trip. This letter was crucial to their fortunes. Investors in London were eager to know how they had gotten along with nearby Indians, and it was Archer’s job to inform them. Archer was equally aware that other people might read his letter, too—rival English adventurers, for example, who were ready to stake their own claims, or, more frightening, Spanish spies, who might intercept a copy in London, and were eager to see England’s colonies destroyed. To stave off these threats, it was important that he describe the journey upriver in a way that clearly established English rights to the land.
Curiously, though, Archer’s letter did not resemble what most Europeans would have recognized as a legal document of any kind—much less a land claim. There were no references to the New World as a waste space, void, or empty territory waiting to be taken by the first Christians who found it. Instead, there was a detailed account of the many “kynges” who ruled the area.3 And there were scant descriptions of forts, houses, or fences (the way Europeans usually showed ownership). Such details were pushed aside in favor of an almost theatrical account of diplomacy among the Indians, with feasting, dancing, and other ceremonies taking center stage. Perhaps most surprising was the way Archer documented Indian treaties, like the league with the king. There were none of the Latin formulas so familiar in European treaties, no lists of witnesses, no signatures—not even the x-marks found in treaties between the English crown and illiterate Irish clansmen. In a startling departure from European conventions, Archer offered an account of treaty making on Indian terms, pointing to the exchange of shouts and other indigenous rituals as proof of friendship between Newport and the king.
English colonists in the first decades of the seventeenth century spent a surprising amount of energy documenting the political life of the people whose territory they invaded. They described Native leaders as kings, and referred to tribal polities as nations and empires.4 They detailed Native ceremonies, set down the speeches of Native leaders, and reported on the proceedings of tribal councils. Most of all, when it came to recounting treaties, they often chose to describe Native ways of making and marking agreement, preferring stories of feasts, shouting, and tribute to the somber signing rituals of European diplomacy.
This book tries to explain why Archer and so many other English colonists were interested in coastal treaties, and why they so often focused on Native rituals in their writings home. That colonists cared about Native politics at all may seem like a surprising thing to assert, given what we know about how things turned out. An important body of scholarship has shown that colonists imposed their own political and legal systems on Native people.5 In what follows, there will be much to confirm this story. In early North America, as in other places of encounter, the law and its rituals were undoubtedly instruments of conquest. But as Archer’s document so vividly shows, English colonists were far from dismissive of coastal treaty practices. One reason for their interest was the simple desire to survive. Newport and his group were outnumbered, as were most English colonists in the first years after arrival, and settling on anything other than Native terms was out of the question. But this does not explain why writers like Archer described coastal rituals in such detail in letters home, at times even choosing Indian protocols over their own. Understanding that, I will argue in this book, requires looking beyond the riverbank to the palaces, halls, and council rooms where European crowns negotiated rights to American territory.
Though Archer focuses on the politics of the coast, his report also reflected dramatic shifts in European legal systems in the decades before English settlement. The English set sail for the New World at a time of great uncertainty about international law, or what they called the law of nations. While European princes had for many centuries viewed themselves as members of a res publica Christiana, an order of Christian crowns answering to the pope, over the course of the sixteenth century many declared their autonomy from papal authority and asserted their sovereignty, or absolute power, over territory, peoples, and foreign affairs. These challenges to papal authority extended to the New World, as northern crowns contested the pope’s donation of America to Spain and Portugal and formulated their own protocols for conquering land across the seas. In this book, I argue that treaties with Native Americans were one way the English crown and its colonists sought to demonstrate possession of foreign territory. In ancient legal traditions, there were many precedents for conquering land with treaties. According to early modern glosses of ancient Roman texts, a sovereign power could lay claim to territory through a treaty with its inhabitants. These treaties, which had to represent consensus ad idem, a “meeting of the minds” or voluntary agreement between parties, served as proof that a claim was pacified, or under control. I will argue here that English colonists publicized treaties with Native Americans precisely in order to advertise this kind of possession. They used treaties to show other Europeans that the English crown had brought American territory under control. And while this was no doubt an imperialistic strategy, having as its goal the conquest of land, I will argue that it led to a profound irony, one that powerfully shaped English colonial writing. When the English pointed to treaties with Native peoples as evidence of possession, Native words, gestures, and other ways of marking agreement suddenly became highly charged evidence in international legal disputes, even as Natives themselves lost their land and power.
Today’s global powers rarely dispute the form of treaties. International accords are embodied in written texts. News coverage of treaties often depicts heads of state bent over official documents, poised to ratify them with the sweep of their pens. Such rituals date to the early modern period, when princes or their representatives concluded leagues and pacts by signing embossed documents.6 The Treaty of London (1604), which brought an end to the Anglo-Spanish War (1585–1604) and opened the way for English colonization, was signed first by James I (who also swore an oath to abide by its articles) and then ratified by Philip III in a separate ceremony. The treaty was widely publicized in paintings and publications, which many of the Virginia colonists probably encountered.7 Set beside such grand acts of state, the treaty with the river Indian king hardly seems to merit comparison. However, while the early seventeenth century was a time of great agreements between princely powers, it was also a time of great uncertainty about the nature of sovereignty and the proper mode of its expression, especially when it came to the New World. Though European princes had well-established protocols for making treaties with each other, the application of the law of nations to supposedly heathen peoples—who were believed to be incapable of taking oaths or signing their names—led to widespread controversy over how to ratify treaties. While many authorities believed that pagans were not subjects of the law of nations, and that their political rituals had no capacity to register consent to a binding agreement, others, including Spanish friars and Protestant jurists, debated the possibility that all the peoples of the world were governed by natural law, and could make treaties according to their own customs, however strange or savage those might seem.8
Existing scholarship on treaties
