This treaty conference took place at the federal government’s Kansa [sic] Agency, three and a half miles southeast of Council Grove. By the time of the treaty’s negotiations, the federal government’s Office of Indian Affairs (OIA) bureaucracy - including regional superintendents and agents (assigned to tribes or specific reservations), overseen by a commissioner of Indian Affairs - had operated for more than two decades. Presidents appointed these officials at all levels and OIA positions constituted patronage jobs, doled out to the president’s partisan supporters after each election. At the same time, Congress also held significant influence in the OIA’s operations and personnel, through ratifying treaties and recommending appointments. Though some federal Indian agents supported tribal communities and advocated on their behalf, most had no qualifications in working with Indigenous nations and accepted the position because of the accumulation of wealth and power that such roles typically conferred. As historian David A. Nichols has documented, the OIA was “a system of institutionalized corruption” that operated like a “political machine.” Indian agents often had significant influence in distributing annuities - annual payments to Indigenous nations for their ceded lands - negotiated in treaties. Agents distributed annuities for “goods and services” to local individuals and companies who charged inflated prices for subpar products. Agents also had direct access to Indigenous land, which many claimed for themselves or speculated in (sold for a profit).¹³ 

Numerous Indian agents in Kansas territory engaged in this corruption, including those assigned to the Kanza, such as their agent at the time of this treaty, John Montgomery. While he worked to expel squatters from the reservation, he was also accused of staking claims on Kanza land for himself and other influential squatters. Perhaps this is why the Treaty of 1859 negotiations proceeded “without notifying agent John Montgomery.”¹⁴  

Commissioner of Indian Affairs Alfred B. Greenwood, came to Kansas territory in 1859 to negotiate land cession treaties with the Delaware, Sac and Fox, and Kanza. Greenwood advocated a more aggressive reservation assimilation policy, known as “concentration,” that confined Indigenous nations to significantly smaller, temporary reservations. Under this system, on the remaining “diminished reserves,” individual family plots would be allocated (allotted) to Indigenous families, destroying Indigenous towns and communal agriculture. Squatters and land speculators also favored Greenwood’s concentration policy because assigning Kanza families specific tracts of land within the reservation would make it easier to determine boundaries and acquire Kanza land in the future. Both Greenwood and locals viewed Kanza residence in Kansas as short-lived.¹⁵ 

Many Kanza leaders participated in this treaty’s negotiations, including the influential Hard Chief and his brother Ishtalasea, along with Fool Chief and Allegawaho. Hard Chief, a prominent leader for decades, signed the Treaty of 1825 and 1846, and opposed Methodist mission schooling for Kanza children, in part because of the illnesses and deaths experienced by students. His brother Ishtalasea, another signer of the Treaty of 1846, was known for his commanding presence and booming voice. Many Kanza favored Ishtalasea’s “eloquence and strength of personality” in dealing with Americans. His name translated into English as “Speckled Eyes,” denoting his unique black and brown spotted pupils. Fool Chief’s father (of the same name) also served as one of the Kanza’s principal leaders, signing the Treaties of 1825 and 1846; a role his son assumed after his death. “Allegawaho” is a Pawnee word for “Big Elk;” as a young man Allegawaho killed a Pawnee chief of that name, and then adopted the name for himself “as a trophy.” By the late 1860s, Allegawaho became the foremost Kanza leader.¹⁶ 

This article begins with two lies. The Kanza did not have “more lands than are necessary for their occupation and use.” Instead, many families illegally squatted on Kanza land, which limited the land the Kanza could use to support their citizens and national economy.¹⁷ Second, they did not want to abandon their culture and end communal land owning, the practice in which the tribal nation rather than individual tribal citizens owned the land. In addition, they wanted the reservation land borders agreed to in the Treaty of 1846 upheld and the squatters removed.¹⁸ 

The Kanza complained to their Indian agent, John Montgomery, and repeatedly to Washington representatives about the devastating effects of this settler invasion on their lands.¹⁹ In 1857, a delegation of Kanza led by Hard Hart visited Washington to explicitly ask that “the government of the United States . . . reinstate them in the full and free possession & enjoyment of their reserved lands uninterrupted by the presence of whites within the limits of their reservation.”²⁰ Nothing came of it.  

Despite their protests, Council Grove continued to grow within the boundaries of their reservation. Thriving from Santa Fe Trail trade, the town, officially formed in March 1857, received a “charter of incorporation by the territorial legislature and governor in 1859.”²¹ Seth Hays, a witness to the Kanza’s 1846 treaty and slave owner, ran a booming trading post and advocated for officially founding the town. Thomas Huffaker, also a slave owner, came to Council Grove in 1851 from the Shawnee Mission (in modern day Johnson County, Kansas) to found the Kaw Mission school. Since few Kanza students attended, Huffaker welcomed the local white settlers’ children in a separate area of the school. As a result, the Kaw Mission school became the first segregated school in Kansas.²² Hays and Huffaker worked together, along with others, to advocate for the town’s incorporation, confident in their ability to obtain the land rights despite the fact that the known treaty boundaries prohibited it.²³ In the end, their arrogance worked: for only $2,000, the town company received a quit-claim deed for the town’s land even before the Treaty of 1859’s negotiation or ratification (approval by the U.S. Senate).²⁴  

The Treaty of 1859 also reduced the Kanza’s 256,000-acre reservation to 80,620 acres, sometimes known as the “diminished reservation.” This article mandated that some of the Kanza’s reservation land be divided (“in severalty”) into 40-acre parcels, in an effort to compel the Kanza to abandon their system of a central town with multi-family homes, surrounded by shared agricultural fields. The federal government designated “headman of each lodge” (multi-family home) received a 40-acre square parcel near a stream upon which the federal government built a stone hut. Frequently his wife, and perhaps several of his children were assigned plots adjoining his that were deemed good for growing crops. Other members of the lodge were assigned their 40 acres within a mile or two of the headman’s, where federal officials presumed livestock would graze.²⁵ 

The final provision of this article required land be set aside for an agency - a federal government liaison office for the Kanza - and a Christian missionary school. This constituted another attempt to force the Kanza to pay for their own assimilation (see The Treaty of 1825, Article 5 and The Treaty of 1846, Article 2, for more information). The agency involved numerous buildings that housed federal employees, their livestock and supplies. Much of the 160 acres allocated to the agency also constituted the “agency farm,” meant to “teach” the Kanza how to conduct Euro-American-style agriculture. Of course, Kanza women had farmed for millennia, but their communal - rather than individual family - plots flew in the face of U.S. assimilation goals.²⁶ If you visit the Kaw Nation-owned Allegawaho Memorial Heritage Park today, one of the stone agency buildings still stands, as do the ruins of some of the stone huts. 

In 1863, Quakers established a new mission school on the 160 acres allocated for that purpose. The school suffered from significant student turnover and inconsistent attendance. After Kanza parents complained about inadequate food and clothing for students and the uninteresting curriculum, the school closed in 1866. In 1869, the Quakers started a second school, and over the next few years the school experienced increasing enrollments, attributed to the growing hardship the Kanza faced on the diminished reservation. As Kanza chief Allegawaho said in 1871, “I believe my people will soon be impoverished. This I do not want to see. This is the darkest period in our history.” The federal government expelled the Kanza from the state of Kansas through an 1872 act of Congress, leading to the school’s closure.²⁷ 

Since the Treaty of 1846, Kanza reservation boundaries had been unclear and undetermined, leading to long-term challenges. Article 2 sought to avoid some of this confusion with clearer language about land parcels. As discussed in Article 1, 160 acres were designated for the federal agency (offices of the Indian agent to the Kanza) and another 160 acres for a mission school. Should any gaps have existed between the 40-acre allotments (land held in “severalty”) assigned to Kanza individuals and the agency and school tracts, the Kanza nation would own these lands and waterways ‘in common,” meaning as a group or nation. Per this article, the entirety of the individually defined tracts, the lands owned in common, and the agency and school parcels constituted the Kanza’s diminished reservation.  

This article encompassed the most appealing aspect of this entire treaty for the Kanza: guarantee of exclusive Kanza occupation of their remaining reservation lands. The treaty stated “...no white person…shall be allowed to reside or go upon any portion of said reservation without the written permission.” For years, invasion had proved the most formidable obstacle to Kanza survival in their homeland. This article indicated white squatters would be expelled from the remaining diminished reservation. In fact, hundreds of settlers - some estimates put their numbers as high as 800 - already squatted on the diminished reservation land the Kanza retained in this treaty. As historian Ronald D. Parks has argued, “The only way Kanza chiefs could reclaim their Neosho valley homeland was to sign the Treaty of 1859.” Unfortunately, despite this legal agreement, the squatters did not move. In fact, a second treaty in 1862 (see below) required the Kanza to take the profits from the sale of the land they ceded in this 1859 treaty to pay squatters for their “improvements” - homes, barns, fields, etc. - built illegally on Kanza land. In other words, the Kanza had to pay illegal squatters to move off of Kanza land.²⁸  

This article marks a significant change in the language of the Kanza treaties to this point and illustrates the development and subsequent hardening of U.S. Indian policies. As the U.S. gained power in the nineteenth century, it moved further away from its constitutional recognition of Indigenous sovereignty and the ability of tribal nations to own land collectively. Instead, in the Treaty of 1859, we see a step toward the policies of forced allotment - dividing land into individually owned pieces - that would eventually culminate in the Dawes Act (General Allotment Act) of 1887 and the Curtis Act of 1898 that forced allotment on many Indigenous nations.  

Article 3 granted federal officials, and ultimately the Secretary of the Interior, the power to divide and assign allotments on the Kanza reservation. In reality, the local Indian agent did this work. However, turnover in the position delayed surveying and assigning Kanza allotments until 1862. The process intentionally divided up and separated residents from the Kanza’s three primary towns, into 40-acre family plots along streams within the diminished reservation. The agent’s plan aimed to force the Kanza into individual family farming, rather than their customary collective fields farmed by women from numerous families. As stated in the article, Kanza heirs and descendants could inherit these allotments, which were supposed to then remain exempt from taxation, sale, and seizure.²⁹ 

This article also stated that “said tracts shall not be alienated in fee, leased or otherwise disposed of, except to the United States or to other members of the tribe…” In other words, the Kanza could not sell their land to anyone other than the U.S. government. To use the language of real estate, Kanza land was not “fee simple.” The U.S. Supreme Court, in what is known as the Marshall Trilogy (see “​​Treaties and Timeline”), established that Indigenous nations held only a “right of occupancy” to their land, which they could only relinquish to the U.S. government, which is reiterated in this treaty.³⁰ 

Article 3, likewise, brings back the idea of wardship that was also established in the Marshall Trilogy. The U.S. Supreme Court ruled that the relationship between Indigenous nations and the U.S. government was that of “ward to guardian.” Ignoring Indigenous nations’ sovereignty, this policy allowed the U.S. to make decisions that were allegedly in the Kanza’s “best interests.” In Article 3, such responsibility is placed in the hands of the Secretary of the Interior, who, when any land was in question, was to take actions “as in his judgment may be necessary and proper.”³¹ 

Article 4 describes how the land the Kanza were forced to relinquish in this treaty would be sold: in 160-acre parcels to the highest bidder in cash, submitted in sealed bids. If the Kanza or the federal government had “improved” any of this land by, for example, tilling fields or building structures, that would be added to the price of the land at sale. Licensed traders would receive compensation for their “improvements” on Kanza land, too. Squatters who had settled on this land cession before December 2, 1856 (the date of the certified legal survey) would be able to buy their claims for $1.75 per acre, paid in cash during a limited time period determined by the Secretary of the Interior. For the squatters, this was similar to the process defined in federal law since 1841 as “pre-emption,” which gave the first settler on a piece of land the first right to buy it. As historian Richard White concluded, “preemption was simply legalized squatting,” and such policy convinced many settlers to squat on Kanza lands in the first place, believing these federal policies would eventually ensure their legal ownership. And they were right. However, squatters on the land the Kanza retained after this treaty would only receive “fair compensation,” as determined by the Commissioner of Indian Affairs, for their improvements, and would need to vacate the premises, as discussed above in Article 2. This compensation would come out of the proceeds the Kanza earned from selling the land ceded in this treaty. In other words, the Kanza had to pay squatters on their remaining reservation land to leave.³² 

This treaty met with much hostility in and around Council Grove. Many of the local squatters and investors in the Council Grove Town Company resented the sealed bid process, believing it would aid speculators in gaining access to land. At the same time, many people that squatted on Kanza land did so partially out of their own economic desperation, and few “could afford to pay even a relatively low cash price.” Those who squatted on the Kanza’s remaining land were particularly angry that they would be expelled from the diminished reservation.³³  

For months after the treaty negotiations in 1859, squatters, townsite investors, and other locals lobbied federal officials, elected leaders, and published newspaper articles demanding amendments to the treaty to protect their “claims.” They succeeded when the U.S. Senate added amendments known as the Treaty of 1862, annotated below.³⁴ 

Article 5 sets up a plan to repay the debts - called “present liabilities” - the Kanza had accrued to traders: sell Kanza land. This treaty’s reduction of the Kanza’s 256,000-acre reservation to 80,620 acres, left 175,380 acres as “surplus lands.” Of course, the term “surplus” only applied to U.S. policymakers and squatters’ view; from the Kanza perspective, they needed all their land. As discussed above in Article 4, the federal government intended to resell Kanza land in 160-acre tracts, at fair market value, to the highest bidder, in cash.³⁵  

Since the Jefferson presidency, debt to traders proved an effective strategy to acquire Indigenous lands. Indigenous nations supposedly accumulated sizable trading debts that could only be repaid with the liquidation of their most valuable asset: land. Traders received licenses from the federal government and operated monopolies. Historian David A. Nichols documented the prevalence of corruption among Indian agents and traders, showing how “corrupt bookkeeping and the charging of unreasonable prices” kept Indigenous nations “in perpetual debt.”³⁶ By 1859, the Kanza allegedly owed $36,500 to Council Grove traders “Columbia, Hays, Conn, Simcock, and Huffaker.” This treaty served the traders’ interests through selling Kanza land to cover these supposed debts, but also through relinquishing the Council Grove townsite, which would directly profit the town company’s investors, including Columbia, Hays, Conn, and Huffaker.

Article 6 addresses the fact that the United States still owed the Kanza annuities (annual payments) from the Treaty of 1846, which had been agreed upon just thirteen years earlier. In exchange for land cessions, the Treaty of 1846 had promised the Kanza annuities of $8,000 for thirty years. This article states that if the sale of “surplus lands,” described in Article 5, did not provide enough funds to cover the alleged debts the Kanza incurred to traders - who were notoriously corrupt - then these “debts” could be deducted from the Treaty of 1846’s remaining annual payments. The Treaty of 1859, then, offers government officials another way to potentially reduce their financial obligations to the Kanza. The article also gives the Secretary of the Interior broad power to manage and distribute the money owed to the Kanza “as he shall consider best,” which people at the time and since have identified as “institutionalized corruption” (see the first annotation of this treaty).³⁸ 

This article gave Congress and the President wide latitude - without negotiation with the Kanza - to make changes to previous treaties. As stated in Article 6, the federal government entered into the Treaty of 1859 decades before they had fulfilled all of their obligations from the Treaty of 1846. The expansion of federal authority here, at the expense of Kanza sovereignty, foreshadowed Congress’ passage of the Indian Appropriations Bill of 1871, which ended treaty negotiations with all Indigenous Nations. The following year, 1872, Congress passed the “Kaw Land Bill” that authorized the sale of the Kanza’s remaining reservation lands in Kansas, and expulsion to Indian Territory (today Oklahoma), without any consultation with the Kanza.³⁹ 

This article broadly reiterates what is stated in other articles: the Kanza will pay for this treaty’s negotiations and any associated costs. Deducting expenses from the payments for their lands (from this treaty or the Treaty of 1846) reduced the income the Kanza collected from selling their lands - an income they desperately needed. As each article makes clear, the U.S. negotiators tried to make the final payout for the Kanza lands taken in the Treaty of 1859 as little as possible.  

The U.S. government often used terms like “half-breed” “half-blood” or “full-blood” to describe Indigenous peoples. “Breed” typically referred to animal species and such language subsequently became a racial slur. Indigenous societies had long histories of incorporating people and defining nationhood and membership or citizenship in ways that had nothing to do with hierarchies of so-called “Indian blood.” In documents like this treaty, federal policy makers used such terms and ideas to divide Indigenous communities. The language also implied that “real Indians” were somehow (conveniently) disappearing.⁴⁰ 

Article 6 of the ​Treaty of 1825 between the U.S. and the Kanza, designated twenty-three 640-acre parcels of land on the north side of the Kansas River (between modern-day Topeka and Lawrence) as “half-breed tracts.” That treaty assigned each tract to minor children of Kanza-French trading families and federal officials intended these families to take up Euro-American-style agriculture on their tract. However, in an 1829 treaty with the Delaware nation, the federal government designated these same tracts part of the Delaware reservation. Because of this confusion and the legal challenges it caused, most of the tract owners and their families stayed in their homes at Kawsmouth (near modern-day Kansas City) or moved to St. Louis. A smaller group started using their tracts in 1840 to supply migrants bound for Oregon and the Pappan ferry took travelers across the river. In the 1850s, after Congress created Kansas Territory, many migrants squatted on the so-called “half-breed tracts” just like they did on the Kanza reservation that precipitated this treaty.⁴¹ 

The creation of the Kansas River tracts in 1825 launched factionalism and geographically divided Kanza people - a common outcome federal officials exploited to gain further land from many Indigenous nations. Nevertheless, Kanza people remained connected to one another and traveled between the Kansas River communities and the reservation. The Kanza viewed the Kansas River tracts as part of their national lands, just like the reservation, which contributed to the creation of Article 9 in this treaty. This article specifically assigned forty-acre allotments on the remaining reservation land to children of Kansas River tract families - those designated as “half-breeds” in the Treaty of 1825 and here again in 1859. The federal government hoped this article would prompt more of the Kansas River Kanza residents - whom the government perceived as more “civilized” - to move to the reservation and thus pressure their Kanza relatives to adopt Euro-American-style agriculture and Christian education.⁴² 

Included in those listed in the article are sisters Josette and Julia (also known as Julie) Gonville, who received Kansas River tracts in the Treaty of 1825. They married French brothers Joseph and Louis Pappan, respectively, and operated the successful ferry and other businesses on the land that is today North Topeka. By 1866, after selling her North Topeka lands, Julie and Louis moved to their forty-acre allotment provided by Article 1 of this treaty. Shortly thereafter, their grandson Charles Curtis - who became vice president of the United States in 1929 - joined them for about two years on the reservation, and eventually inherited part of his grandmother’s and mother’s land from the treaties of 1825 and 1859.⁴³ 

By this point Council Grove was a crucial provision stop on the Santa Fe Trail (then known as the Santa Fe Road). While Council Grove itself was being removed from the Kanza land base by the Treaty of 1859, the new reservation boundaries still had the potential to place the Kanza in the direct path of the Santa Fe Trail traffic. This article assured that such traffic could not only continue through the Kanza’s remaining reservation lands, but also potentially expand with additional roads and - even more consequentially - the arrival of railroads.  

Railroad development in this era, as historian Ronald Parks described, “enhanced agricultural production, increased land values, stimulated immigration, introduced new technologies,” and of course, profited investors. By 1863, significant buzz emerged about multiple railroads crossing through Council Grove and thus Kanza lands. Competing interests of multiple railroad investors as well as squatters on the Kanza’s diminished reservation led to three efforts to negotiate a removal treaty to expel the Kanza from Kansas. In the chaos, Kanza leaders visited Washington D.C. twice (in 1864 and 1867) in hopes of securing the best possible payment for lands already overrun by squatters. Ultimately, none of these treaties were ratified (approved) by the U.S. Senate.⁴⁴  

In 1869, the building of the Missouri, Kansas, and Texas Railroad (known as the Katy) significantly disrupted Kanza life. Seven hundred workers descended on the reservation. They cut Kanza timber to make ties and they let their livestock graze in Kanza women’s fields, destroying the corn crop. The official federal contract put limits on how much Kanza timber the railroad could utilize and established how much the company would pay the Kanza for it. The railroad harvested more than four times as many ties as they needed to build the track and never fully paid the Kanza the contractually required amount. As with so much else found in treaties, this article’s seemingly simple allowance for “right of way,” paved the way for a multitude of competing interests to exploit the Kanza’s land and natural resources, without providing the “just compensation therefor [sic] in money” this treaty required.⁴⁵  

The Treaty of 1859 proved enormously consequential for Kanza survival in their homeland. However, squatters' demands proved more influential with members of Congress than upholding the Treaty of 1859’s provisions. Hence, a mere three years later, Congress amended this treaty, adding what is known as the “Treaty of 1862” provisions discussed below.