Historical Studies Journal

Who Watches the Watchers?: The Evolution of the Role of Guardians in Early America, 1637-1828

By: Aaron Heathcote

Introduction

Major John Mason expressed a tangible joy reflecting on his massacre of 600 Native men, women, and children at Mystic Fort during the Pequot War in 1637. He recalled of the Native whose homes he incinerated that “they would fly from us and run into the very Flames.”^[1] The high walls the Pequots built around their encampment presented a formidable challenge to the Anglo-Indian alliance that attacked the fort that night. Both Mason, attacking from the north, and fellow Englishman John Underhill, attacking from the south, lost a fellow countryman during the initial volley. Uncas, the Mohegan sachem fighting by Underhill’s side, was no stranger to combat and likely supported any maneuver that protected the men with whom he fought. When Mason ordered his men to burn the encampment to the ground with the Native inhabitants inside, Uncas was hesitant to protest. All tactics were considered acceptable when they saved the lives of one’s own people. Perhaps, then, it was of little concern to Uncas that his partner Narragansetts were the only soldiers to die after those first two Englishmen, or that it was the English themselves that killed them. Uncas, though, didn’t respond in disgust at the slaughter of his people at the hands of the English. Instead, the total warfare that Uncas witnessed for the first time at Mystic Fort sparked his imagination of what power could and should be in the modern world emerging in his native land.^[2] Even the joy that Mason expressed in his reflection on the occasion, evident on the battlefield, was not a warning to avoid such a man. Rather, it was inspiration for Uncas to align himself with that very man amid the uncontrollable construction of colonial America around him.

The threat of extinction weighed heavily on the minds of Native people.^[3] Conflicting understandings of property rights and incompatible forms of agriculture and hunting exacerbated the boiling tension between the two nations poised to erupt. Sachems sought different strategies and formed allegiances in an attempt to stave off elimination, but Native politics and English intervention often rendered these partnerships feeble. Adopting a guardian, an overseer of Native land and activity in the colonies, was an alternative arrangement.

The guardian as an official colonial role emerged in the middle of the 18th century when colonies and eventually states enshrined the position into law. The burgeoning infrastructure of the New World didn’t allow for rapid transit or communication. Governments thus required the role of guardians to regulate on the ground the relationship between the Native people and the state apparatus materializing around them. Over nearly 200 years, the position of guardian evolved through three distinct stages: first as a personal and mutually beneficial relationship between Englishman and Native; to a decentralized role with extensive authority; and finally to a position more heavily regulated by the state. This paper seeks to explore the changing nature of the Native overseer.

The current scholarship surrounding guardians creates a spectrum of insights. On one end, historians like Oberg contend that Uncas was a hostile participant in his relationship with Mason, a guardian-style arrangement in which Mason was the only party to benefit. Rather than granting agency to the Mohegan sachem, Oberg argues that “[h]e had, in fact, few other options” when it came to protecting his tribe.^[4] Towards the middle of the spectrum are thinkers like Bragdon, who concede that “Indian communities exercised some measure of self-governance” in their selection of guardians.^[5] At the other end of the spectrum sits historians like St. Jean who concede that Uncas and Connecticut benefitted just as much as Mason from their arrangement.^[6] This paper is situated at this end of the spectrum and adopts many of the assumptions espoused by St. Jean. By doing so, I will contribute to the ongoing discussion of guardians by examining the evolution of laws governing guardians through the lens of Native autonomy rather than Native subjugation.

This paper finds that the role of guardian grew out of necessity and collapsed out of excess. The incentives inherent in the first mutually beneficial stage were depleted by the opportunities for corruption indelible in the more official second stage. Practitioners like Andrew Oliver, one of the first documented guardians in the colonies, tested the unspoken norms of the overseer position too aggressively, prompting legislatures to redefine the role. The regulations of the third stage partially reined in that misconduct, but they also diminished the efficacy of guardianship that was most apparent in the personal relationship between Uncas and Mason.

First, there is a period in which the guardian was a free agent working in his best interests. Then, there is a period in which the governments try to rein in Indians with their own guardians, but discretion and conflicting interests interfere. Then, there is a final period in which governments rein in the guardian.

Understanding the motivations of both the guardian and the Natives they oversaw will expand the commonly held American view that the plight of Natives was handed down by only the most powerful figures in the colonies. Guardians were the foot soldiers of the burgeoning colonial bureaucracy, and their sweeping authority was a product of necessity rather than a consequence of the role’s prestige. The evolution of the role demonstrates that the project of America, more than any hateful governor or president, was too immense for Native tribes to control.

The Partnership Between Uncas and John Mason

In an ongoing bout of internal Native politics, Uncas often clashed with his brother-in-law, Pequot sachem Sassacus. Uncas failed five times to expropriate Sassacus’s authority, each failure losing him followers and land. This weakened both his ability to lead and to survive. To amend his fortunes, according to St. Jean, “Uncas began to cultivate an alliance with the English.”^[7] As the sachem of his people, Uncas likely viewed the relationship between survival and regional power as a symbiotic one, and so sought to forge a closer alliance with those who may have been his greatest threat. The terror faced by the Pequots at Mystic Fort didn’t seem like a threat to Uncas and his Mohegans, but rather a threat to their enemies. If Uncas could wield Mason’s English violence to his advantage, his people stood a chance to not only survive in their changing world but thrive in it.

Such a forceful relationship was not foreign to Native tribes, even if their English associates were. Southeastern tribes were known to employ “squirrel kings,” protectors to whom tribes would provide gifts in exchange for security.^[8] As the sachem of his tribe, Uncas wanted for his people the strongest, and perhaps most unforgiving squirrel king that favors could buy. The benefits of such violence outweighed the risk that others would turn it against the Mohegans themselves. Since Uncas retained his authority over his people, day-to-day life remained largely unchanged by the arrangement. Furthermore, with the English population growing in both size and ferocity all around him, Uncas could not afford to be selective in his choice of protector. The tumult of the Pequot War built a strong relationship between Uncas and Mason.^[9]

Uncas was no victim of circumstance, but rather a shrewd operator in the society developing around him. In what may be the first instance of English guardianship over Native land, Uncas signed an agreement with John Mason naming him trustee of the land in exchange that he and his heirs would receive “half of the profits from the sale of Mohegans’ lands, woods, ponds, minerals, herbage, rents, etc.”^[10] Uncas, who obtained much of the Mohegan land through strategic marriages to Pequot women, recognized that selling land was the surest route to obtaining modern weaponry, necessary to survive the growing population of English colonists. While he lost half of his potential profits to Mason, Uncas was correct in assessing that without Mason’s protection, the land could be stolen or confiscated by the colony, leaving Uncas with no profits. In addition to the financial windfall, Mason had the more altruistic objective of defending Connecticut land from encroaching Rhode Island settlers. It was a time of uncertainty in the colonies. Without a formal charter, Connecticut was vulnerable to land grabs from adjacent colonies who were more adversarial than friendly in their dealings. This relationship created a mutually beneficial arrangement between Uncas, who secured his land and his authority over the regional tribes, and Mason, who secured his financial prospects and his prestige in Connecticut. Connecticut itself strengthened its territorial claims through the incentives of private land ownership.

Connecticut was, at times, adversarial in this arrangement. In 1646, Governor John Winthrop Jr. granted the Niantic, Narragansett, and Pequot tribes permission to hunt on land already granted to Uncas.^[11] Even before signing their formal agreement, the ensuing conflict with encroaching tribes tested the relationship between Uncas and Mason. Even in the ten years since the Pequot massacre, Uncas was right if he wasn’t ready to fully trust Mason to honor his guardianship role. When Mason turned back the trespassing Natives, that trust was fostered.

Perhaps even more vital, Mason then sent a warning letter to Winthrop and other nearby Englishmen that the land in question belonged to Uncas and the Mohegans, under the authority of Connecticut magistrates.^[12] It’s one thing for an Englishman to threaten violence against Native people, but to threaten violence against other Englishmen was a sign of complete devotion to his guarantee of protection. It was this moment that prevailed in Uncas’s mind when, in 1659, Uncas signed the first of three formal agreements naming Mason guardian of Mohegan land.^[13] He may not have fully appreciated the significance of his signature, but he no doubt understood the significance of his friendship with Mason, and more than 20 years into their relationship, he was ready to entrust Mason with the future of the Mohegan people. Uncas keenly recognized the power structures of the English world, understood that he needed an ally, and secured one by consolidating the traditions of Native people with the formalities of English contracts. This was the foundation of future guardianships in New England.

Native Property Rights, 1697-1747

Laws and legal decisions in the Massachusetts Bay Colony in the 18th century indicate that the colonies were displeased with the autonomy exhibited in relationships like that between Uncas and Mason and sought to exert more control over Native land. An act passed in 1697 stipulated that any lands “purchased of any Indian or Indians, without orderly confirmation [of the General Court]” would not “have or receive any benefit” for the purchaser.^[14] Like most sovereign bodies, Massachusetts Bay wished to maintain as much control over its territory as was feasible. A private actor like John Mason exerting force without colonial authority threatened to diminish its sovereign authority, an unacceptable prospect during the tumultuous early days of the colonial establishment. With this legislation, Massachusetts Bay secured the right to intervene in the foundation of any guardian relationships developed between Native tribes and savvy private actors. In 1747, after a half-century of observing the weaknesses of the 1697 act, the colonial government extended the powers of Massachusetts Bay to include land transfers resulting from the last will and testament of any Native persons.^[15] The desire for colonies to retain such authority, particularly as their populations grew rapidly, likely meant that such legislation was widespread across colonial New England. The memories of Uncas and John Mason were slow to fade.

The colonies sought to control Native behavior. An act passed in the middle of the 17th century provided “allotments” for the Natives if they “live civily and orderly” on their own plantations.^[16] Such acts put even tighter controls over Natives than those fortunate enough to own land and left them subject to regular inspection. For the Natives, stipulations over their behavior combined with the fears and mistrust of colonial settlers left them at constant risk of harassment. For the colony, strict rules required regular monitoring to be properly enforced. A 1693 act empowered the Governor to “appoint and commissionate one of more discreet persons within several parts of this Province, to have the inspection and more particular care and government of the Indians.”^[17] These appointees were guardians empowered to handle civil and criminal matters, settle disputes between parties, and execute the law. The balance of the relationship between the government and the Native people now tipped towards the government, placing Native interests at the mercy of government control.

Such laws required agreements, like those between Uncas and Mason, to be formalized by a governing body, leaving them at risk of being nullified. John Sepett, a Native man who inherited land from his father, found success before the General Court. His father entered into an informal agreement with Englishman Jonathan Mory that the two would share the land rather than selling it to Plymouth. When both men died, their sons maintained the agreement; the 1697 law, however, compelled the men to seek approval from the General Court. Their petition was approved. Nathan Hood, another Native man, was also compelled to seek approval from a guardian to petition the General Court when he wished to sell his land to settle a debt. He, too, secured the right to sell his land.^[18] That Sepett and Hood were successful in their petitions may exemplify a level of unexpected ambivalence on the part of the Massachusetts Bay Colony. But, the requirement to file the petitions at all illustrates the level of control the colony wished to exert over its Native subjects. Tasking the guardians as gatekeepers to this process ensured their involvement in vital matters of land sales. The colony held the authority to deny both claims, the repercussions of which would have been tremendous for Native people who had few avenues for redress.

John Mason was granted similar authority in his relationship with Uncas, but the singularity of their partnership minimized the possibility of Mason abusing his power. This new role, overseeing the entirety of the Native population in its jurisdiction, was much more susceptible to misconduct and ineptitude. Under these conditions, the foundation of the formal guardian was laid.

Andrew Oliver, esq.: Colonial Guardian

The role of guardian, at least for some, opened the door to further political ambitions. In 1746, attorney Andrew Oliver was replaced by Captain Thomas Wiswall as the guardian in Stoughton, Massachusetts Bay.^[19] 14 years later, he was declared the Secretary of the Province, a more prestigious role than the frontline position of guardianship.^[20] As both roles were appointed, Oliver didn’t need to seek the approval of voters, but only from those at the highest levels of authority. Political incentives were not a guarantee of abuse of power, but the need to appease colonial governments left Native people under guardian jurisdiction at risk of such abuses. Since guardians like Oliver didn’t form longstanding trust with their subjects, such as that between Uncas and Mason, the arrangement caused further anxiety in Native communities.

In the case of Oliver, such anxieties were warranted. As Secretary of Massachusetts Bay, Oliver was responsible for reporting on the outbreak of an unknown and deadly disease that spread across Martha’s Vineyard and Nantucket. Observing both the Native and colonial populations, Oliver noted that “no person at all died of it, but such as were intirely of Indian blood.” Ignoring his own observations that the Native inhabitants lacked corn, and that the “cold moist season” was particularly harsh, the well-educated Secretary concluded that only the Natives were susceptible to the disease.^[21] Such thinking, which required an implicit assumption of Native weakness or unworthiness, was likely to guide Oliver’s thinking as a guardian as well. Decisions over civil disputes or land sales approvals were at risk of inexplicable results in favor of Englishmen at the hands of an authoritative figure who denied his own critical thinking in favor of unsubstantiated prejudices. If Oliver was representative of the culture of guardians, the colonies either needed to restrain their behavior or tacitly endorse it.

The Legacy of Guardianship in Duke’s County, Massachusetts Bay

The evolution of laws governing guardians in Duke’s County showed a pattern of the state expanding the powers of its Native overseers, but only after reining in their authority. In 1805, the two guardians appointed by the governor were empowered to authorize Native land sales and to approve contracts with Native people, not to exceed an established low value.^[22] By 1810, those same guardians were further endowed with the power to sanction the redistribution of Native land and to reapportion that land every ten years and to approve the appearance of any Native person to appear as a plaintiff in court.^[23] This granted immense power to colonists who were far removed for the physical reach of the governor.

In the likely event that any of these guardians thought similarly to Oliver’s biased reasoning, Native people may have been powerless to hold their traditional lands or to petition their grievances when they’d been wronged. The colony’s desire for control over its Native population steered it towards potential abuse, moving further away from the amicable relationship between Uncas and Mason.

By the next year, the now-state began to tighten its leash on guardians. An 1811 law required them to report on their activities to the court annually, a common practice for managers of autonomous employees.^[24] By 1818, the reporting requirement was shortened to every six months. That same law removed from guardians the power to consent to land contracts.^[25] Seven years later, guardians were compelled to, upon accepting a guardianship, post a bond worth twice the value of the land they oversaw.^[26] Stipulating a financial burden for any potential wrongdoing was unlikely to be adopted in law absent previous wrongdoing by guardians. The incentives that sprung from the mutually beneficial relationship between Uncas and Mason were distorted by the tipping in the balance of power towards the state. Without a personal stake in the relationship, guardians sought gain that negatively impacted Native people; these laws were a reaction to that bad behavior. By 1828, Native people in Duke’s County were empowered by amended law to vote for representatives such as a constable and an overseer, positions to which guardians were obliged to answer.^[27]

The shift in power, from the guardians to the state and eventually to the Native people themselves, illustrated the fractious relationship that guardians had with their subjects. Without the mutual and personalized incentives seen between Uncas and Mason, New England’s colonial and state governments adapted their laws to tackle issues as they emerged. It was impossible to predict the on-the-ground issues that arose in the New World, and lawmakers needed to remain vigilant and active in their formation of laws meant to address novel issues. With so many unknowns, legislatures faced scarce time to waste legislating against problems that were merely theoretical; the laws they passed were only those deemed the most necessary. Limiting the powers of guardians was in response, then, to misbehavior on the part of individuals given such sweeping authority.

Conclusion

I’ve expounded in this paper on three distinct periods of the role of guardian, the first defined by the mutual incentives of the Native and the Englishman, the second highlighted by the extensive autonomy and corruption of the guardian, and the third characterized by increasing state control. The authority given by Uncas to John Mason was in the best interest of the Mohegan tribe, but represented a threat to colonial sovereignty. During the tumultuous early days of the colonies, governors recognized that maintaining unmistakable authority was more valuable than the wishes of any single tribe or Englishman. If the colony was to retain a monopoly on violence, it was unacceptable that private actors like Mason exerted force to fulfill his commitments to a single tribe. In response, the colonies formalized the role of guardian on a mass scale, removing the benefits of personal relationships in exchange for widespread control.

The realities of the New World required guardians to be endowed with enormous autonomy. The biased culture of guardians employed predetermined outcomes for the decisions they were to make, and the incentives of excess were too great to be disregarded. Abuse of power ensued. Legislatures were forced to constrain the guardians they had empowered in the first place. It was unreasonable to expect the personal relationship between Uncas and Mason to be replicated across all of New England, but the fortunes of Natives in the region may have been more favorable if colonial legislatures adopted more of the benefits cultivated by their friendship. Further research is needed to explore the specifics of those abuses, but the record of evolving laws strongly suggests that abuses by guardians not only occurred but happened regularly. It may well be that John Mason, who was responsible for the massacre of the Pequots, was the strongest ally to any Native tribe after all. This paradox underscores the precarious situation of Native tribes in early America–and the opportunity it created for burgeoning colonies to seize power amid that uncertainty.

Notes

1. St. Jean, Wendy B., Inventing Guardianship: The Mohegan Indians and Their ‘Protectors,’ The New England Quarterly 72, no. 3 (1999): 363. https://doi.org/10.2307/366888. ↑

2. Oberg, Michael Leroy, Uncas: First of the Mohegans (Ithaca, NY: Cornell University Press, 2003), 66-68. ↑

3. Particularly the sachems who were responsible for leading their people through the changes brought on by English settlement. ↑

4. Oberg, Uncas, 155. ↑

5. Bragdon, Kathleen J. The Columbia Guide to American Indians of the Northeast (New York: Columbia University Press, 2002), esp. 75. ↑

6. St. Jean, Inventing Guardianship, 368. ↑

7. St. Jean, Inventing Guardianship, 365. ↑

8. Ibid., 366. ↑

9. A trust which was unlikely to be in abundance. ↑

10. Ibid., 377. ↑

11. Ibid., 370-371. ↑

12. Ibid., 370. ↑

13. Ibid., 377. ↑

14. An Act of Limitation for Quieting of Possessions, 1697, Acts and Resolves of the Province of the Massachusetts Bay (Boston, Mass: Wright and Potter, 1869)1: 299-301, https://archive.org/details/actsresolvespubl_d01mass/ page/298/mode/2up. ↑

15. An Act for Explaining an Act, entitled “An Act to Prevent and Make Void Clandestine and Illegal Purchases of Lands from the Indians,” so far as Relates to the Devise of Bequest of Any Real Estate by the Last Will and Testament of Any Indians, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 15, https://archive.org/details/lawscolonialand00statgoog/page/ n26/mode/2up?q=guardian. ↑

16. For Settling the Indians’ Title to Lands in this Jurisdiction, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 9, https://archive.org/details/ lawscolonialand00statgoog/page/n20/mode/2up?q=guardian. ↑

17. An Act of the Province of Massachusetts Bay, Passed 1693-4, for the Better Rule and Government of the Indians in the Several Plantations, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 12, https://archive.org/details/lawscolonialand00statgoog/page/ n24/mode/2up?q=guardian. ↑

18. Town Meeting March 26, 1722, Records of the Town of Plymouth (Plymouth, Mass: Avery and Doten, 1892) 2: 217, https://www.google.com/books/edition/Records_of_the_Town_of_Plymouth_1705_to/lAkQAAAAYAAJ? hl=en&gbpv=1. ↑

19. In the House of Representatives, Read and Concurred, Jan 9, 1746, Acts and Resolves of the Province of the Massachusetts Bay (Boston, Mass: Albert Wright, 1878) 3: 341, https://archive.org/details/actsresolvespubl03mass/page/340/mode/2up?q=guardian. ↑

20. Military Accounts for 1759, Jasper Manduit: Agent in London for the Province of Massachusetts-Bay, 1762-1765 (Massachusetts Historical Society, 1918) 8-9, https://www.google.com/books/edition/Collections_of_the_Massachusetts_Histori/vy8TAAAAYAAJ?q=diary+intitl e:Massachusetts+intitle:Historical+intitle:Society+intitle:Collections&gbpv=1#f=false. ↑

21. An Account of an Extraordinary Disease among the Indians, in the Islands of Nantucket and Marthu’s Vineyard, in New England. In a Letter from Andrew Oliver, Esq; Secretary of His Majesty’s Province of Massachusett’s Bay, to Israel Mauduit, Esq; F. R. S., Dec 20, 1764 (Royal Society of London), https://archive.org/details/ philtrans00895881/mode/2up. ↑

22. An Act for the Protection of the Indians and Their Property, in that Part of Duke’s County, Known by the name of Christiantown, 1805, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 21, https://archive.org/details/lawscolonialand00statgoog/page/ n32/mode/2up?q=guardian. ↑

23. An Act for the Better Regulation of the Indians, and Other People of Colour, Inhabitants of the Island of Chappequidick, in the County of Duke’s County, 1810, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 23, https://archive.org/details/ lawscolonialand00statgoog/page/n34/mode/2up?q=guardian. ↑

24. An Act for the Better Regulation of the Indian, Mulatto, and Negro Proprietors of Gay Head, in the County of Duke’s County, 1811, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 12, https://archive.org/details/lawscolonialand00statgoog/page/ n36/mode/2up?q=guardian. ↑

25. An Act in addition to An Act for the Protection of the Indians and Their Property, in that Part of Duke’s County, Known by the name of Christiantown, 1818, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 25-26, https://archive.org/details/lawscolonialand00statgoog/page/n36/mode/2up?q=guardian. ↑

26. An Act Regulating the Duties of Trustees and Guardians of Indians or Tribes of Indians Within this Commonwealth, 1825, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 29, https://archive.org/details/lawscolonialand00statgoog/page/ n40/mode/2up?q=guardian. ↑

27. An Act for the Better Regulation, Instruction, and Government of the Indians and People of Colour in the County of Duke’s County, 1828, Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (Washington City: Thompson and Romans, 1832) 30-32, https://archive.org/details/lawscolonialand00statgoog/page/n42/mode/2up?q=guardian. ↑