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Treaties with American Indians

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Treaties with American Indians
An Encyclopedia of
Rights, Conflicts, and Sovereignty

VOLUME I

Donald L. Fixico
EDITOR

Santa Barbara, California • Denver, Colorado • Oxford, England

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Copyright 2008 by ABC-CLIO, Inc.

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Library of Congress Cataloging-in-Publication Data


Treaties with American Indians: an encyclopedia of rights, conflicts, and sovereignty/Donald L. Fixico, editor.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-57607-880-8 (hard copy: alk. paper)—ISBN 978-1-57607-881-5 (ebook)
1. Indians of North America—Legal status, laws, etc.—United States—Encyclopedias.
2. Indians of North America—United States—Treaties—Encyclopedias. 3. Indians
of North America—Government relations. I. Fixico, Donald Lee, 1951–
KF8203.6.R74 2008
342.7308’72—dc22
2007027797

12 11 10 09 08 1 2 3 4 5 6 7 8

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This important study of Indian
treaties is dedicated to the people of my
tribes, who have suffered, endured, and
now prosper again:

To the Shawnee,
To the Sac and Fox,
To the Seminole, and
To the Muscogee Creek
—Donald L. Fixico

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Board of Advisors
Dr. Duane Champagne (Turtle Mountain Chippewa), former Director of American Indian Studies Center,
University of California at Los Angeles

Ms. Ada Deer (Menominee), Director of American Indian Studies, University of Wisconsin-Madison, and
former Assistant Secretary of Interior of Bureau of Indian Affairs

Dr. Clara Sue Kidwell (Choctaw), Director of American Indian Center, University of North Carolina,
Chapel Hill

Dr. Colin Calloway, Director of Native American Indian Studies, Professor of History, and Samson Occom
Professor of Native American Studies, Dartmouth College

Dr. Sharon O’Brien, Co-Director of Tribal Law Center and Professor of Political Science,
University of Kansas

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Contributors
Donna L. Akers Jean Bedell-Bailey
University of Nebraska, Lincoln Martin, South Dakota
Dancing Rabbit Creek, Mississippi People v. LeBlanc, 1976
LeFlore, Greenwood
Pushmataha Yale D. Belanger
University of Lethbridge
Joseph P. Alessi Aboriginal Title
United States Military Academy
Old Briton Brant, Joseph
Washakie (Pina Quahah, Scar Face) Crowfoot
Inuvialuit Final Agreements–June 1984
Laurie Arnold
The Newberry Library Phil Bellfy
House Concurrent Resolution 108, 1953 Michigan State University
Public Law 280, 1953 Constitution Act (Canada), 1982
Termination LaDuke, Winona
Métis
Dewi I. Ball Pontiac
University of Wales, Swansea Robinson Superior Treaty (First Robinson
Doctrine of Discovery Treaty)–September 7, 1850
Government-to-Government Relationship Sault Ste. Marie, Michigan and Ontario
Indian Removal
McClanahan v. Arizona State Tax Commission, Sally Colford Bennett
1973 Johnson County Community College
Mille Lacs Band v. Minnesota, 1999 Black Hawk
Puyallup Tribe v. Department of Game of Chouteau, Auguste
Washington, 1968 Forsyth, Thomas
Puyallup Tribe v. Department of Game of Fort Harrison, Indiana
Washington, 1977 Gaines, Edmund Pendleton
Sovereignty Greenville, Ohio
Treaty Jesup, Thomas S.
United States v. Wheeler, 1978 St. Joseph, Michigan
Warren Trading Post Co. v. Arizona Tax St. Louis, Missouri
Commission, 1965 Tippecanoe River, Indiana
Winters v. United States, 1908 Vincennes, Indiana
Wabash River, Indiana
Helen M. Bannan Wells, William
University of Wisconsin, Oshkosh
Wauneka, Annie Dodge Donald R. Bennie
University of Guelph
William Bauer Constitution Act (Canada), 1867
University of Wyoming
California, Eighteen Unratified Treaties, 1851–1852 Ned Blackhawk
University of Wisconsin, Madison
Opechancanough

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x Contributors

Robert D. Bohanan Phillippe Charland


Jimmy Carter Library Université de Québec à Montréal
Watie, Stand Canonicus

Robyn Bourgeois Anjali Choksi


University of Toronto Hutchins Grant & Associés
Self-Government Agreements (Canada) Connolly v. Woolrich (Canada), 1867
Pre-Confederation Treaties (Canada)
John P. Bowes Specific Claims (Canada) (with Lysane Cree)
Dartmouth College
Caldwell, Billy Ryan L. Church
Pokagun Los Angeles, California
Treaty with the Chippewa, Etc.–September 26, 1833 Allotments
Oliphant v. Suquamish Indian Tribe, 1978
Daniel L. Boxberger
Western Washington University C. Blue Clark
California, Hawaii, and the Pacific Northwest Oklahoma City University Law School
Relevant Court Cases Related to Treaties
Jay H. Buckley
Brigham Young University D. Anthony Tyeeme Clark (Meskwaki)
Clark, William University of Illinois
Lewis, Meriwether Harjo, Suzan Shown

Charles W. Buckner Richmond Clow


University of Memphis University of Montana
Deer, Ada E. Spotted Tail
William Campbell
McMaster University Gavin Clarkson
Gadsden, James University of Michigan
Curtis Act, 1898
Jack Campisi Morton v. Mancari, 1974
Mashantucket Pequot Museum and Research Center Rice v. Cayetano, 2000
Colonial and Early Treaties, 1775–1829
Michael C. Coleman
Roger M. Carpenter University of Jyvaskyla, Finland
National Museum of the American Indian Treaties and American Indian Schools in the Age of
Riel, Louis Assimilation, 1794–1930
Uncas
Chip Colwell-Chanthaphonh
Martin Case Center for Desert Archaeology
Minneapolis, Minnesota Eskiminzin
Cass, Lewis Sacred Sites
Prairie du Chien, Wisconsin
Traverse des Sioux, Minnesota Lysane Cree
Hutchins Grant and Associés
Rene Casebeer Blondin-Andrew, Ethel Dorothy
University of Washington Federal Power Commission v. Tuscarora Indian
Camp Stevens (Walla Walla), Washington Nation, 1960
Medicine Creek, Washington Modern Treaties/Comprehensive Land Claim
Agreements (Canada)
Alexandria E. Casey Sahtu Dene and Métis Comprehensive Land Claim
Michael S. Casey Agreement–September 6, 1993
Graceland University Specific Claims (Canada) (with Anjali Choksi)
Geronimo (Goyathlay)

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Contributors xi

Steven L. Danver C. S. Everett


Journal of the West Vanderbilt University
Burke, Charles H. American Indian Policy Review Commission
Indian Water Rights and Treaties Blount, William
Little Turtle Doak’s Stand, Mississippi
Mankiller, Wilma Pearl Lea, Luke
Menominee Tribe of Indians v. United States,
1968 Angela Firkus
Ouray Cottey College
Trust Responsibility Leupp, Francis Ellington
Meriam Report, 1928
Leigh Darbee Oshkosh
Indiana Historical Society
Harrison, William Henry Andrew H. Fisher
Tecumseh College of William and Mary
Boldt Decision (United States v. Washington),
Jennifer Nez Denetdale 1974
University of New Mexico Hunting, Fishing, and Gathering
Barboncito Sohappy v. Smith and United States v. Oregon,
Manuelito 1969
Treaty with the Navajo–June 1, 1868 Sohappy, David, Sr.

David H. DeJong Donald L. Fixico


Prima-Maricopa Irrigation Project Arizona State University
Deloria, Vine, Jr. Bureau of Indian Affairs (BIA) Public Apology,
2000
S. Matthew DeSpain Cobell Case, 1996
University of Oklahoma Indian Tribal Energy and Self-Determination Act,
Doaksville, Oklahoma 2005
Jerome, David H. National Museum of the American Indian, 2004
Pike, Albert Sand Creek Massacre Site Return, 2002
Seminole Tribe of Florida Purchase of Hard Rock
Sonia Dickey Café, 2007
Albuquerque, New Mexico
Carson, Kit Hugh W. Foley, Jr.
Long Walk, 1864 Rogers State University
Atoka Agreement, 1897
Alan C. Downs Bearskin, Leaford
Georgia Southern University Harjo, Chitto
Aquash, Anna Mae Pictou
Canyon de Chelly, Arizona Andrew Frank
Massasoit Florida Atlantic University
Wounded Knee Occupation, 1973 McIntosh, William, Jr.

Antonie Dvorakova Ritu Gambhir


University of Chicago New York University
Black Kettle Inuit
Treaty with the Cheyenne and Arapaho–October 28, Nunavut Land Claims Agreement–May 25, 1993
1867
Treaty of Fort Laramie with the Sioux, Granville Ganter
Etc.–September 17, 1851 St. John’s University
Red Jacket
R. David Edmunds
University of Texas at Dallas
Northeast and the Great Lakes

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xii Contributors

Tim Alan Garrison Treaty with the Chippewa–October 4, 1842


Portland State University Treaty with the Chippewa–September 30, 1854
Southeast and Florida
Ross Hoffman
Deborah Gilbert Trent University
State University of New York, Stony Brook Indian Act of Canada, 1876
Dawes Commission (Commission to the Five
Civilized Tribes) Tom Holm
Ridge, John Rollin University of Arizona
Reservations and Confederate and Unratified
Bradley J. Gills Treaties, 1850–1871
Arizona State University
Doolittle Committee Arthur Holst
Trail of Tears Philadelphia, Pennsylvania
Bureau of Indian Affairs (BIA)
Carole Goldberg Commerce Clause and Native Americans
University of California, Los Angeles Fort Pitt, Pennsylvania
Federal Policy and Treaty Making: A Federal View
Chris Howell
Kevin Gover Red Rocks Community College
Arizona State University Battle of Fallen Timbers, 1794
Statutes as Sources of Modern Indian Rights: Child Battle of Horseshoe Bend (Tohopeka), 1814
Welfare, Gaming, and Repatriation Battle of the Thames, 1813

Pamela Lee Gray Stephanie Irlbacher-Fox


Purdue University University of Cambridge
Boudinot, Elias Alaska Native Claims Settlement Act, 1971
Fort Sumner, New Mexico Gwich’in Comprehensive Land Claim
New Echota, Georgia Agreement–April 1992
Red Cloud (Makhpiya-Luta) Canadian Indian Treaty 11–June 27 to August 30,
Ridge, Major 1921

S. Neyooxet Greymorning Cornelius J. Jaenen


University of Montana University of Ottawa
Treaty with the Delaware–September 17, 1778 Canada

Kimberly Hausbeck Bruce E. Johansen


Nova Southeastern University University of Nebraska, Omaha
Domestic Dependent Nation Canassatego
Indian Country Captain Jack
Plenary Power Dull Knife
Emathla, Charley
Karl S. Hele Handsome Lake (with Barbara A. Mann)
University of Western Ontario Hendrick
Bagot Commission (Canada) Jackson, Helen Hunt
Deskaheh Johnson, William
Dumont, Gabriel Kicking Bird
Manitoba Act (Canada), 1870 Metacom
Royal Proclamation of 1763 Seattle (Seath’tl)
Treaty of Montreal–August 7, 1701 Standing Bear (Mo-chu-no-zhi)
Tibbles, Susette LaFlesche (Bright Eyes, Inshta
Troy Henderson Theamba)
Loyola University of Chicago United States v. Kagama, 1886
Treaty with the Chippewa–January 14, 1837

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Contributors xiii

Theodore J. Karamanski Phil Konstantin


Loyola University of Chicago San Diego, California
Chicago, Illinois Hawkins, Benjamin
Michilimackinac, Michigan
Helen M. Krische
Anne Keary Watkins Community Museum of History
University of Utah American Indian Self-Determination and Education
Indian Rights Association (IRA) Act of 1975
Longest Walk, 1978
Watkins, Arthur V. Janne Lahti
University of Helsinki, Finland
Michael J. Kelly Fort Laramie, Wyoming
Creighton University
Jefferson, Thomas Denise Lajetta
Native American Graves and Repatriation Act, 1990 The Kluge-Ruhe Aboriginal Art Collection of the
Supremacy Clause University of Virginia
Treaty with the Cherokee–November 28, 1785 Alcatraz Occupation, 1964 and 1969
United States v. Dion, 1986
United States v. Sioux Nation, 1980 Amanda Laugesen
Williams v. Lee, 1959 Australian National University
American Indian Movement (AIM)
Penelope M. Kelsey Indian New Deal
Rochester Institute of Technology Trail of Broken Treaties, 1972
Treaty with the Six Nations–November 11, 1794
Laurie Leclair
Clara Keyt Toronto, Ontario
Arizona State University Canadian Indian Treaty 3–October 3, 1873
Banks, Dennis
Means, Russell Lloyd L. Lee
Arizona State University, West Campus
Clara Sue Kidwell Executive Order Reservations
University of North Carolina, Chapel Hill Guardianship/Wardship
Indian Appropriations Act, 1871
Cooper, Douglas H. Stacy Leeds
University of Kansas
Joyce Ann Kievit Indian Treaty Making: A Native View
Tempe, Arizona
Opothleyahola Peter D. Lepsch
Reconstruction Treaties with the Cherokee, Choctaw, Monteau and Peebles
Chickasaw, Creeks, and Seminole–April Trust Land
28–July 19, 1866
Treaty with the Choctaw–September 27, 1830 Tamara Levi
Treaty with the Cherokee–December 29, 1835 University of Nebraska, Lincoln
Annuities
C. Richard King Pratt, Richard Henry
Washington State University
Indian Gaming Regulatory Act, 1988 Anne-Marie Libério
University of Paris IV, Sorbonne
Annie Kirby Hitchcock, Ethan Allen
University of Wales, Swansea
Collier, John Fred Lindsay
General Allotment Act (Dawes Act), 1887 San Francisco, California
Indian Reorganization Act, 1934 Adair, William P.
Adams, Hank

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xiv Contributors

Cherokee Tobacco Case, 1870 James McIntyre


Jemison, Alice Mae Lee Moraine Valley Community College
Joseph Fort Harmar, Ohio
Osceola Knox, Henry
United States v. Creek Nation, 1935
Mark Edwin Miller
Patricia A. Loew Southern Utah University
University of Wisconsin, Madison Federal Acknowledgment Process (FAP)
Buffalo Nonrecognized Tribes
Sandy Lake, Minnesota State-Recognized Tribes
Treaty with the Sioux, Etc.–August 19, 1825
John Bear Mitchell
Brad D. Lookingbill University of Maine
Columbia College of Missouri Maine Indian Claims Settlement Act of 1980 (with
Lone Wolf (Guipähgo) Micah Pawling)
Sitting Bull
Bradford W. Morse
Jean-François Lozier University of Ottawa
University of Toronto Canadian Indian Treaties
Articles of Capitulation of Montreal, September
1760 Daniel S. Murphree
University of Texas, Tyler
Priscilla MacDonald McGillivray, Alexander
Toledo, Ohio
De La Cruz, Joseph Burton Caryn E. Neumann
Ohio State University
Barbara A. Mann Cherokee Nation v. Georgia, 1831
University of Toledo Pitchlynn, Peter
Handsome Lake (with Bruce E. Johansen) Worcester v. Georgia, 1832

Kurt T. Mantonya Greg O’Brien


Topeka, Kansas University of Southern Mississippi
Council Grove, Kansas Indian Removal and Land Cessions, 1830–1849
Federally Recognized Tribes
Indian Civil Rights Act, 1968 Sharon O’Brien
University of Kansas
Patricia S. Mariella Indian Treaties as International Agreements
Arizona State University
Property: Land and Natural Resources Caoimhín Ó Fearghail
University of Maryland
Aliki Marinakis Ex Parte Crow Dog, 1883
University of Victoria
Erasmus, George Henry Knut Oyangen
Iowa State University
Robert O. Marlin IV Battle of Tippecanoe, 1811
University of Houston, Clear Lake St. Clair, Arthur
Treaty of Guadalupe Hidalgo, 1848 Wayne, Anthony
Elk v. Wilkins, 1884
Vera Parham
Ron McCoy University of California, Riverside
Emporia State University Oakes, Richard
Crazy Horse (Tašunka Witko)
Sitting Bear (Setangya or Satank) Linda S. Parker
San Diego State University
Alaska, Hawaii, and Agreements

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Contributors xv

Micah Pawling Bruce A. Rubenstein


University of Maine University of Michigan, Flint
Maine Indian Claims Settlement Act of 1980 (with Chivington, John Milton
John Bear Mitchell)
Deborah Rubenstein
Larry S. Powers St. Clair County Community College
University of Memphis Dearborn, Henry
Indian Territory Schoolcraft, Henry Rowe

Jay Precht Susan Sánchez-Barnett


McNeese State University Baltimore County Public Schools
Indian Claims Commission Act, 1946 Lone Wolf v. Hitchcock, 1903
Indian Claims Commission (ICC) Tee-Hit-Ton Indians v. United States, 1955

Edward D. Ragan John Savagian


Old Dominion University Alverno College
Powhatan Aupaumut, Hendrick

Akim D. Reinhardt Daniel Edward Shaule


Towson University Toronto, Ontario
Tribal Government Authority versus Federal Williams Treaties with the Chippewa and the
Jurisdiction (with John R. Wunder) Mississauga–October to November 1923

Martin Reinhardt Bradley Shreve


Reinhardt & Associates, Brighton, Colorado University of New Mexico
Trust Doctrine Bellecourt, Clyde
Cochise
Jon Reyhner Santa Fe, New Mexico
Northern Arizona University Williams, Roger
Dodge, Henry Chee
Southern Plains and the Southwest Steven E. Silvern
Salem State College
Justin B. Richland Lac Courte Oreilles Band of Chippewa Indians
University of California, Irvine v. Voight et al., 1983
Mitchel v. United States, 1835 Reserved Rights Doctrine

Barnett Richling Michael A. Sletcher


University of Winnipeg Yale University
British-Labrador Inuit Peace Treaty–April 8, 1765 Albany Conferences of 1754 and 1775
Treaty of Albany with the Five Nations–July 31,
Chad Ronnander 1684
University of Wisconsin, Eau Claire Washington’s Address to the Senate, September 17,
Dodge, Henry 1789

Paul C. Rosier Eric R. Smith


Villanova University University of Illinois, Chicago
Northern Plains Great Lakes Indian Fish and Wildlife Commission
Right of Conquest
Ezra Rosser Right of Occupancy/Right of the Soil
Loyola University of New Orleans
Cohen, Felix S. Gregory E. Smoak
Johnson v. M’Intosh, 1823 Colorado State University
Nixon’s Message to Congress, July 8, 1970 Treaty with the Eastern Band Shoshone and
Bannock–July 3, 1868

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xvi Contributors

Elizabeth Sneyd James Bay and Northern Quebec


Royal Military College of Canada Agreement–November 11, 1975
Nacho Nyak Dun Final Agreement–May 29, 1993 Nisga’a Final Agreement–April 27, 1999
Vuntut Gwitchin Final Agreement–May 29, 1993 Northeastern Quebec Agreement–January 31, 1978
St. Catherine’s Milling & Lumber Company v.
Scott L. Stabler The Queen (Canada), 1887
Grand Valley State University R. v. Van der Peet (Canada), 1996
Parker, Ely S. (Do-He-No-Geh-Weh)
Tim Watts
Michael A. Stewart Kansas State University
University of Oklahoma Ross, John
Treaty of Ghent, 1814
Gray H. Whaley
Gordon Stienburg Western Michigan University
University of Toronto Dalles, The, Oregon
Canadian Bill of Rights, 1960
Charles E. Williams
Paul H. Stuart Clarion University
Florida International University Treaty Conference with the Six Nations at Fort
Legislation, Treaty Substitutes, and Indian Treaties Stanwix–November 1768

April R. Summitt Waziyatawin Angela Wilson


Arizona State University, Polytechnic Campus University of Victoria, British Columbia
Cornplanter Little Crow
Satanta
John R. Wunder
Céline Swicegood University of Nebraska, Lincoln
University of Chicago Tribal Government Authority versus Federal
Indian Removal Act, 1830 Jurisdiction (with Akim D. Reinhardt)

Andrew J. Torget Jason M. Yaremko


University of Virginia University of Winnipeg
Jackson, Andrew Canadian Indian Treaties 1 and 2–August 1871
Parker, Quanah Canadian Indian Treaty 4–September 15, 1874
Canadian Indian Treaty 5–September 24, 1875
Tracey L. Trenam Canadian Indian Treaty 6–August 28, September 9,
Aims Community College 1876
Assimilation Canadian Indian Treaty 7–September 22, December
4, 1877
Özlem Ülgen Canadian Indian Treaty 8–June 21, 1899
University of Sheffield Canadian Indian Treaty 9 (James Bay
Calder v. Attorney-General of British Columbia Treaty)–November 6, 1905, October 5, 1906
(Canada), 1973 Canadian Indian Treaty 10–September 19, 1906,
Delgamuukw v. British Columbia (Canada), 1997 August 19, 1907
Hamlet of Baker Lake v. Minister of Indian
Affairs and Northern Development Gayle Yiotis
(Canada), 1980 National Museum of the American Indian
Dawes, Henry Laurens

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Contents

VOLUME I

Thematic Essays
Regional Essays

VOLUME II

U.S. and Canadian Indian Treaties


Important Treaty Sites
Primary Source Documents

VOLUME III

Historical Chronology
Biographies
Treaty Related Issues

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Volume I
Introduction, xxi

Thematic Essays
Governments and Treaty Making Statutes as Sources of Modern
Indian Treaty Making: A Native View 5 Indian Rights: Child Welfare, Gaming,
and Repatriation 109
Federal Policy and Treaty Making:
A Federal View 13
Treaty Responsibility and Reserved Rights
Legislation, Treaty Substitutes, and Indian
Treaties 27 Property: Land and Natural Resources 133
Relevant Court Cases Related to Treaties 39 Indian Water Rights and Treaties 143
Indian Treaties as International Hunting, Fishing, and Gathering 147
Agreements 49 Tribal Government Authority versus
Federal Jurisdiction 161
Historical Periods Treaties and American Indian Schools
Colonial and Early Treaties, 1775–1829 69 in the Age of Assimilation, 1794–1930 179
Indian Removal and Land Cessions,
1830–1849 83 Related Treaty Issues
Reservations and Confederate and Alaska, Hawaii, and Agreements 195
Unratified Treaties, 1850–1871 95 Canadian Indian Treaties 209

Regional Essays

California, Hawaii, and the Pacific Northwest 225 Northern Plains 251
Canada 235 Southeast and Florida 259
Northeast and the Great Lakes 243 Southern Plains and the Southwest 267

Resources, R-1
Alternate Tribal Names and Spellings, R-1
Tribal Name Meanings, R-7
Treaties by Tribe, R-14
Common Treaty Names, R-31
Selected Bibliography, B-1
Index, I-1

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Introduction
PEACE AND FRIENDSHIP is the most commonly There are 374 ratified treaties and 16 agreements.
used phrase in the language of Indian treaties. The The first treaty was concluded in 1778; the last one,
intent of the United States as a young country was to during the late nineteenth century. The shortest
persuade Indian communities to deal only with the treaty is with the Kickapoo in 1820. The treaty is 16
United States. Many things were unsettled following lines long, with 8 Kickapoo leaders and 6 American
the American Revolution, and the tribes found them- officials who signed, involving $2,000 to be paid for
selves in the middle of it. In the early years of U.S.- Kickapoo removal. The longest treaty is the Treaty
Indian relations, the tribes also had common interest with the New York Indians of 1838 at Buffalo Creek
with the British, the French, and the Dutch. in New York; that treaty is 15 pages long. The
Indian agents and other government officials in Potawatomi signed the most treaties of any tribe, a
the United States negotiated more than four hun- total of 26. The biggest gathering was the council
dred treaties and agreements with American Indi- held at Medicine Lodge, Kansas, during October
ans; treaty talks occurred for more than one hundred 1867, at which 500 soldiers met with more than
years. Interestingly, Indian and white leaders met at 15,000 Plains Indians gathered from the Cheyenne,
various sites that often had been the meeting places Arapaho, Apache, Kiowa, and Comanche. The
for previous trading and council meetings. Negotiat- largest number of treaties were signed in 1825 and
ing in Native languages and English through inter- 1836, 20 each year; 19 treaties were signed in 1855, 18
preters was difficult, although some Native people in 1865, and 17 in 1832.
spoke some of the white man’s tongue. Beginning in In regard to categories, 229 treaties involve
1778 with the Delaware, when the United States ceded lands; 205 are about payments and annuities;
negotiated its first successful treaty with an Indian 202 include the phrase peace and friendship; 115 are
tribe and ratified it, a historic precedent was set, one about boundaries; 99 address reservations; 70
that has made Native Americans a unique minority include civilization and agriculture; 59 are about
in their own country. For the record, Indian tribes in roads and free passages; 52 address the sovereignty
what is now the United States also made treaties or the authority of the United States or tribes; 49
with the British, the French, the Confederate States include allotment and guaranteed lands; 47 contain
during the Civil War, and with other Indian tribes. gifts, goods, or presents; 38 contain provisions on
In Canada, the federal government negotiated education; 34 contain provisions on hunting, fishing,
seventeen treaties with the First Nations peoples, and gathering rights; 28 authorize forts and military
starting in 1871 and ending in the twentieth century. posts; 25 include trade; 12 address railroads; several
These consist of thirteen numbered treaties plus the include agents for the tribes; and a few treaties deal
four Robinson and Williams treaties. with one or more of the following: stolen horses,
The mid-nineteenth century represented the returning prisoners, slavery, returning criminals,
zenith of treaty making; during the next twenty intruders, scalping, alcohol, missions, and mail
years, the practice sharply declined. A rider attached routes.
to a congressional appropriations act in 1871 ended Treaties between Indian tribes and the United
the Indian treaty-making business in the United States are binding agreements. For Native peoples,
States, although agreements were negotiated until each step of the negotiation was important, not just
1917. The Act of 1871 did not end the recognition of the resulting words on a piece of paper. Indian
Indian treaties, however; it merely halted the treaty- agents, military officials, and officials of the Indian
making process. Office met with Native leaders to begin negotiations,
U.S.-Indian treaties often included more than which usually began with a council held at a previ-
one tribe, and some tribes signed many treaties. ously agreed-upon site. To Native people, the chosen

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xxii Introduction

site was important, and the talk itself was just as sig- whites in the seventeenth and eighteenth centuries,
nificant as the resulting treaty or agreement. The site more than 250 indigenous languages were spoken.
itself, such as the one near Medicine Lodge in south- The role of interpreters, both Indian and white,
western Kansas and Prairie du Chien in western became crucial to treaty negotiations. The varying
Wisconsin, set the tone of the council. Medicine protocols among tribes for holding councils com-
Lodge has made a lasting impression and is re- pelled American officials to learn about tribal leaders
enacted every five years. before talks of a serious nature began. Cultural dif-
The first meeting, or council, between Indian ferences added to language barriers as problems
and white leaders likely made or broke the tone of arose, often intensifying the clashing views of Indi-
the talks. The council was a fundamental concept ans and whites over land. One perceived land and
among the Indian nations, and tribal protocols var- what it meant economically, and the other under-
ied from tribe to tribe. Unsure of how to approach stood the earth philosophically and celebrated it
the various tribes, federal officials depended upon with ceremonies. The same commodity became
local whites, guides, and traders to introduce them homeland for both sides, and ensuing treaties
to the tribes in their areas. Familiar with the ways of named who owned the land. A new culture of treaty
the Indian tribe, these individuals advised officials making emerged from the older Indian way of hold-
how to approach Native leaders. ing council and talking.
In learning the protocol for dealing with tribes, Gift giving played a crucial role in the early con-
federal officials experienced difficulty in meeting tact and negotiations between Indian and white
with more than one tribe at the same time. They leaders. Federal officials typically brought gifts of
made the mistake of trying to get enemy tribes to inexpensive items such as mirrors, metalwork, and
meet at the same council. Even tribes who met only beads to get the Indians into a peaceful frame of
sometimes, such as the Plains Indians, who gathered mind that would lead to the discussion of bigger
annually during the summer to hold the Sun Dance, issues, such as land cessions. As mentioned, at least
had a mutual understanding of the importance of forty-seven treaties contained provisions for giving
the arrival at camp, as exemplified by the Medicine gifts and presents. Officials understood the impor-
Lodge Council in 1867. Dressed in their finest cere- tance of generosity and sharing among Native peo-
monial garb, a tribe also sometimes wanted to be the ples and used this against them, hence the “Great
last to arrive so that other tribal groups would White Father” in Washington held a position of
acknowledge that an important group had arrived. respect and generosity.
Protocol is involved in any type of summit, The cultural difference between Indians and
council, or important discussion involving conflict- whites proved to be enormous. In addition to the
ing interests, especially if there are deep differences language barriers, both sides operated from different
between cultures. In the general situation of treaty mind-sets; each held different ideas about what was
talks, white officials learned a lot about the impor- important for the negotiations and what the negotia-
tance of kinship relations in forming an agreement, tions meant. Native leaders and federal officials had
especially if it resulted in an alliance between the a challenging situation to overcome before they
two sides. Early treaties—those concluded before could begin successful discussions. It is said that, on
the mid-nineteenth century—were often peace one occasion Osceola, the noted leader of the Semi-
treaties, for the United States wanted tribes to nole in Florida, disagreeing with tribal leaders who
acknowledge their relationship with the new nation signed the Treaty of Fort Gibson in 1833, stabbed his
and abrogate relations with the British and the knife through the two pieces of paper on the table.
French. Bringing about peace following a battle or This was his angry response to all treaties, letting
other conflict created balance between two oppo- others know that his mind was set on going to war.
sites, and this tranquil state of existence fostered It is likely that this did happen since there is a hole in
mutual respect between the two parties and a need the original treaty kept in a vault at the National
for ceremonial acknowledgement. Thus, smoking Archives in Washington.
the pipe was germane to solidifying the new rela- “Touching the pen” became a common occur-
tionship of nonconflict. rence during Indian treaty making. Native leaders
The language barrier between the two sides were unable to write their names because they did
caused great skills in diplomacy to be exercised. not know the English language, and therefore white
During the height of contact between Indians and officials asked Native leaders to “make their

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Introduction xxiii

mark”—which was of little importance to American a nation, thus an Indian nation must have one signif-
Indians, who believed that the spoken word was icant leader or chief. This was not the case with
superior to any words on a piece of paper, which many tribes, such as the Muscogee Creek, the
might be blown away by the wind or destroyed; the Ojibwa, and others, who had leaders for each town
spoken word would always be remembered. Several or village and settlements scattered over a vast
treaty councils witnessed impressive oratory articu- region of the country.
lated by tribal leaders. This was not the white way. Discussion of the treaty’s provisions was
The majority of Indian treaties verify the marks another critical phase of Indian treaty making. Both
made by the tribal leaders. In other situations, the sides met with an agenda of needs, according to
leaders refused to hold the white man’s writing their thinking, and they lobbied to obtain agreement
instrument, and the federal officials asked the Native from the other side. Some acute Native leaders saw
leaders to touch the pen after the names were writ- that education was an important part of the future of
ten by the official in charge. their people and wanted educational assistance in
The most important concern for Native peoples the form of teachers. Common provisions included
in treaty negotiations was their sovereignty. Sover- goods and annuities over a number of years and per-
eignty is an important issue of concern resulting haps blacksmiths. Most of all, large sums of money
from the U.S.-Indian and Canada-First Nations were paid to the tribes for their lands.
agreements. The signing of a treaty creates binding The next phase consisted of the results of
responsibilities between both sides and includes the treaties—some of which caused important changes,
respectful recognition of each for the other. Theoreti- such as the exchange of enormous tracts of land for
cally, the relationship between the two sides is one of perpetual gifts, or changes in fishing or hunting
a sovereign forming an agreement with another sov- rights on ceded lands. The treaties led to a new era in
ereign—that is, government-to-government in a lat- Indian-white relations and actually marked the
eral relationship of similar status. The status is one of decline of the strength of Indian nations. This decline
international law and based on each party to the became evident as tribes such as the Potawatomi,
treaty having faith in the agreement and recognizing Delaware, Chippewa, and others signed several
each other as being sovereign. treaties with the United States. After 1800, the fed-
Trust is a meaningful legal responsibility eral government almost always had the leverage in
between two nations and their people, and treaties treaty talks.
established this reciprocal relationship. Both sides of Strategies of treaty-making involve several
a treaty agreement must abide by the provisions and motives, all of which resulted in the decline of the
must continue to fulfill the responsibilities outlined Indian nations. These strategies involved introduc-
in the document. That trust responsibility continues ing the idea of one nation, one leader; setting bound-
into this century, in the hands of the assistant secre- aries; manipulating leadership; making chiefs; court-
tary of the Department of the Interior, who super- ing treaty signers; and giving gifts to influence tribes
vises the Bureau of Indian Affairs for all tribes in the and their leaders. Such actions almost always were
United States. directed toward Indian men, not toward women
Treaties were a systematic procedure for dealing (although, in many tribes, women held the authority
with Indian tribes. By examining the history of these to select their leaders).
agreements, some assessment can be made about Peace was the main objective in the early U.S.
them in stages or phases. For example, treaty negoti- treaties until about 1850. The federal government
ations, talks, or councils were the first step in this found it much easier to make peace with the Indian
system of agreements. During these important gath- nations than to fight them, which proved costly,
erings, significant Indian individuals were recog- especially as great effort was needed just to find
nized and acknowledged so the representatives of them. The United States signed 374 treaties but
the United States would know who they were deal- fought more than 1,600 wars, battles, and skirmishes
ing with. In some cases, such as the Prairie du Chien against Indian tribes. The Navajo Treaty of 1849 and
meeting, “making chiefs” occurred; this happened the Fort Laramie Treaty of 1851 were negotiated with
more than once when government officials per- peaceful objectives in mind rather than more land
suaded certain individuals to sign for their tribes as cessions. The Fort Laramie agreement involved mul-
leaders. The federal government operated on the tiple groups of the Northern Plains, Sioux, Gros Ven-
political philosophy that a head of state represented tre, Mandan, Arikara, Assinaboine, Blackfeet, Crow,

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xxiv Introduction

Cheyenne, and Arapaho. Boundaries were set to ther diminished the territories of the tribes. Indian
keep them apart, with additional provisions for lands were further reduced by the systematic cre-
roads and military posts included as part of the ation of “permanent” reservations.
treaty. Control of tribal movements was the final strat-
The establishment of boundaries for tribes was egy and result of the treaties. With treaties in place
another goal for government officials as they and with military power greater than that of the
treated with Indian leaders. Many tribes hunted tribes, the United States could enforce control over
over vast territories; government officials were able the weakened Indian nations. Once the leaders were
to contain tribes within certain areas, and they undermined and control exerted over them, Indian
reminded leaders of the boundaries established in superintendents controlled the Indians and condi-
the agreements. Officials introduced Native peo- tions on the almost two hundred reservations
ples to the idea of land ownership and individual throughout Indian country.
ownership. In 1858, the Sisseton and Wahpeton Land was the central issue of U.S.-Indian
Sioux signed a treaty in Washington, D.C., agreeing treaties. As more settlers arrived from England and
to new reservation boundaries. This led to the sur- other countries, the need for more Indian land
veying of the tribal land for division into individual placed considerable pressure on the Indian tribes. A
eighty-acre allotments. In this way, tribal lands domino effect began to occur as eastern seaboard
were reduced in size. tribes of the Atlantic coast retreated inland, thereby
At times, the United States undermined and encroaching on the hunting domains and farming
manipulated leadership to get the lands it wanted. areas of tribes nearby to the west. The expansion of
The importance of kinship played a vital role in white settlement across the Appalachian Mountains
treaty making between Indians and the United caused the newly formed United States to treat with
States. Federal officials learned of the importance of the inland tribes. British agents and traders worked
kinship and symbolic bonds in tribal communities among the Indian nations to gain their allegiance
and used this knowledge to develop a tribal depen- and convince them to reject the proposed talks of
dence on the “Great White Father” in Washington. federal officials.
When the leaders of tribes refused to negotiate, fed- At the same time, other European interests in
eral officials sought out other Indians who were the form of French, Scots, and Irish traders proved
more easily persuaded to sign treaty documents. successful in obtaining acceptance among tribes.
Land acquisition was the principal reason for These trading activities made it more difficult for the
treaties and was pursued to such an extreme extent United States as more Americans pushed into the
that, by the end of the nineteenth century, American Ohio Valley and the back country of the Southeast.
Indians held less than 2 percent of the land that they The most obvious kind of treaty called for tribes
had once possessed totally. The unleashed white set- to surrender their lands. In less than thirty years,
tler became an uncontrollable force to consume from 1801 to 1829, federal officials made thirty-one
Indian lands. Such was the settlers’ greed that fed- treaties with the Chickasaw, Choctaw, Muscogee
eral officials were forced to deal with tribes, which Creek, Cherokee, and Florida tribes. These cession
resulted in many Indian removal treaties or war. A treaties extinguished Indian title to all of the area
domino effect occurred as eastern tribes moved onto east of the Mississippi River from the Ohio River to
lands of interior groups, who moved onto lands of the Gulf of Mexico.
western tribes, and so forth. Officially, treaties had to be ratified by the U.S.
Expansion of the United States was another goal Congress and signed by the president of the United
of government officials. During the Civil War, fed- States. Congressional ratification was most active
eral officials negotiated, and the government rati- during the 1800s, as federal officials met with Native
fied, eighteen treaties that called for expanding the leaders at an increasing rate. Treaty making fell into
territory held by the Union. During the three years a pattern: More and more treaties were negotiated
between March 1862 and March 1865, federal offi- with eastern tribes, who were thus forced to keep
cials concluded treaties with the Kansa, Ottawa, moving westward; the Delaware, for example, were
Chippewa, Nez Percé, Shoshone, Ute, Klamath, forced to remove at least nine times.
Modoc, Omaha, Winnebago, and Ponca Nations. Unratified treaties were agreements not con-
These agreements included land cessions and fur- firmed by the U.S. Congress. Naturally, many agree-

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Introduction xxv

ments were submitted to Congress; most submis- I would like to express appreciation to the fol-
sions were ratified, and some had their provisions lowing individuals at Arizona State University, who
amended. It is estimated that between forty-seven have been helpful in the completion of this project
and eighty-seven treaties were unratified. Most over the last two years: President Michael Crow;
Native leaders did not understand the ratification Executive Vice President and Provost Elizabeth
process and believed that all the agreements they Capaldi; former Provost Milton Glick; Vice President
made were official. David Young, Divisional Dean Debra Losse; former
Chairperson Noel Stowe of the History Department;
and Chairperson Mark von Hagen. I am grateful for
Organization of the Encyclopedia the support from the ASU Foundation, which spon-
This encyclopedia is intended as a comprehensive sors my Distinguished Professorship of History, and
reference tool for anyone interested in American for ASU as a leading university that supports schol-
Indian treaties with the United States. In these three arship in American Indian history. I especially want
volumes, the larger number of U.S.-Indian treaties, to thank Clara Keyt as a research and editorial assis-
their lengths and complexity, and the complexity of tant. I thank my research assistants during the final
Canada-Indian treaties are described. The volumes phase: Matt Garrett, Cody Marshall, and Kristin
are organized in sections. The first volume consists Youngbull; they have helped to track down a lot of
of major essays that explain various perspectives on information as well as doing other chores. With their
Indian treaties, and regional treaties. In the second help, after I moved to Arizona, the boulder was
volume, entries are included that describe each pushed the rest of the way to the top of the moun-
treaty; short entries address treaty sites and terms; tain in the sun with a smile.
and there are primary source documents of many Appreciation is also expressed to all the contrib-
treaties. The third volume contains a historical utors who wrote entries and the noted scholars who
chronology, brief biographies of noted individuals wrote the essays for the encyclopedia. Nor would
involved in the treaties, and a section on treaty- this project have been possible without the patience,
related issues. effort, and tremendous understanding of my good
friend and editor, Steven Danver. Thank you to Car-
oline Price for the tremendous illustrations; and to
Acknowledgments April Wells-Hayes for the thorough copyedit of the
This three-volume project has been the work of manuscript. I wish all editors were like Vicki Moran
many people. I have often felt like an academic who guided this project smoothly through all its pro-
Sisyphus, facing the enormous task of rolling the duction stages. I am especially grateful to my wife,
big boulder up the mountain. More than three hun- Professor April Summitt, whose words of support
dred people have helped, supported, and written encouraged me to complete this project. I am also
entries or essays for this encyclopedia. I am grateful grateful to my son, Keytha Fixico, who has patiently
for the help of the following individuals, who waited for me so that we could go to a movie and do
assisted with this project in the early years at the other son-and-dad stuff. Always, I am grateful for
Center for Indigenous Nations Studies at the Uni- the support of my parents, John and Virginia Fixico;
versity of Kansas: research assistants Viv Ibbett, and I want to acknowledge my four tribes—the
Melissa Fisher Isaacs, David Querner, and Elyse Shawnee, Sac and Fox, Seminole, and Muscogee
Towey. I appreciate the support given my work by Creek—to whom this three-volume encyclopedia is
Chancellor Robert Hemenway, Provost David Shu- dedicated.
lenburger, former Associate Dean Carl Strikwerda,
and former Dean Kim Wilcox at the University of Donald L. Fixico
Kansas. Arizona State University

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Treaties with American Indians

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Thematic Essays
Governments and Treaty Making
Indian Treaty Making: A Native View 5
Federal Policy and Treaty Making:
A Federal View 13
Legislation, Treaty Substitutes,
and Indian Treaties 27
Relevant Court Cases Related
to Treaties 39
Indian Treaties as International Agreements 49

Historical Periods
Colonial and Early Treaties,
1775–1829 69
Indian Removal and Land
Cessions, 1830–1849 83
Reservations and Confederate
and Unratified Treaties, 1850–1871 95
Statutes as Sources of Modern
Indian Rights: Child Welfare,
Gaming, and Repatriation 109

Treaty Responsibility
and Reserved Rights
Property: Land and Natural
Resources 133
Indian Water Rights and Treaties 143
Hunting, Fishing, and Gathering 147
Tribal Government Authority versus Federal
Jurisdiction 161
Treaties and American Indian
Schools in the Age of
Assimilation, 1794–1930 179

Related Treaty Issues


Alaska, Hawaii, and Agreements 195
Canadian Indian Treaties 209

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Governments and
Treaty Making

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Indian Treaty Making: A Native View

L
ike other peoples, American Indians have Treaties are legally binding agreements between

L
always been concerned with preserving their sovereigns; they are also called compacts, covenants,
cultural autonomy, retaining their land, and conventions, and memoranda of understanding. Regard-
maintaining political sovereignty. One way tribes less of the nomenclature, these treaties have been a
have preserved their legal rights is by entering into critical part of the American Indian past and are of
treaties and agreements with other sovereigns. continuing importance to tribal governments today.
Approximately 370 Indian treaties were ratified by In fact, tribal governments continue to negotiate
the United States (Deloria, V., and DeMallie 1999, treaties and agreements with various sovereigns,
181). A number of other treaties that resulted from particularly state and local entities (Deloria, P., and
negotiations between the United States and Indian Laurence 1994, 381).
tribes were never ratified by the U.S. Senate and U.S. federal policy ended treaty making with
remain unenforceable. tribes in 1871. In March of that year, Congress placed
Indian tribes entered into treaties with other a rider on an appropriations bill that ended the prac-
sovereigns for different reasons and with varying tice of Indian treaties in the United States (25 U.S.C.
results. Treaties created military and political § 71). Prior to that date, the executive branch would
alliances, authorized trade, defined political and negotiate treaties with the tribes, and the Senate
jurisdictional boundaries, divided natural resources, would either ratify the treaty or not. Some treaties
established and maintained peace, ensured commu- involved monetary payments to tribes, for which
nity survival, and at times provided for the final dis- Congress needed to appropriate funds. The House of
solution of tribal governments. Representatives objected to this process because they
As a matter of tribal law and policy, a treaty is a were being asked to fund items included in treaties
binding agreement between two or more nations. despite the fact that the House had played no role in
Treaties are legal agreements that Indians expected to treaty negotiations. Although the legislation of 1871
be binding (Wilkinson and Volkman 1975, 612). prohibited the federal government from negotiating
Although not every tribe negotiated treaties with the further treaties with Indian tribes, the law on the
United States, the political consequences of treaty books differs from what actually happened.
making and the legal principles that flow from court Tribes continued as sovereigns, with territorial
cases involving treaty interpretation continue to control over lands and natural resources. The federal
define the legal status of tribal governments within government continued to have a government-to-
the United States today (Monette 1994, 617–618). government relationship with tribes, and political
Even the tribes that never entered into treaties with negotiations continued, although not by means of
the United States benefit from the resulting legal formal treaties as they had before.
framework of Indian nations as sovereigns. Today, As a practical matter, the United States con-
there are more than 560 federally recognized tribes tinued to negotiate formal agreements with tribal
within the United States, including Alaska Native vil- governments well into the 1910s; however, rather
lages. Treaties were the foundation of federal recogni- than being submitted to the Senate for ratification,
tion of Indian tribes as sovereigns (Porter 2004, 1601). these new agreements were presented to Congress
Although treaties were common among the and adopted or rejected by both the Senate and the
tribes in the southeastern United States, the Wood- House of Representatives. In this form, the post-1871
lands (eastern United States), the Great Plains, and agreements with tribes took the form of congres-
the Northwest, many tribes in other regions did not sional enactments rather than ratified treaties. The
routinely negotiate treaties with the United States. most common examples of these agreements are the
For example, few ratified treaties will be found tribally specific enactments to implement allotment
between the United States and tribes in California or on particular reservations. After lengthy negotia-
between the United States and the Pueblos of the tions with tribal governments, federal agents pre-
Southwest (Brann 2003, 754–755). The United States pared formal allotment agreements with the consent
did not enter into treaties with any of the Alaska of tribal officials. These agreements were formally
Native sovereigns (Case and Voluck 1978, 16–17). presented to Congress and adopted as legislation

5
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6 Governments and Treaty Making

instead of ratified as treaties. The federal-tribal owned or controlled by other tribes. Tribes reached
diplomatic process, followed by tribal consent and agreements that recognized boundaries between
federal approval, was essentially the same as the tribal lands and passage between those territories.
treaty-making process prior to 1871. All these negotiations predated European contact
Modern tribal governments continue to enter and influence. In fact, much of the Indian treaty-
into agreements with other tribes and with state and making process was passed from the tribes to their
local governments. Tribal and state governments fre- European counterparts, who freely adopted Indian
quently negotiated cross-deputization agreements treaty-making procedures and diplomatic decorum
between each other as two sovereigns. These agree- in the negotiations that followed.
ments address the jurisdictional ambiguities of law For instance, Indian treaty negotiations often
enforcement in Indian country and typically involve involved long ceremonial meetings, during which
shared law enforcement authority in otherwise- past transgressions were set aside, friendships
disputed areas. The agreements permit tribal police renewed, and gifts exchanged between the parties as
officers to make arrests on lands that would other- a sign of goodwill (Deloria, V., and DeMallie 1995,
wise be under the jurisdiction of the state, and vice 685). These formalities and ceremonial gestures pre-
versa. In some areas of the country, where state and ceded any discussion of new parameters or terms of
tribal jurisdiction depends on the ownership of agreement. In this regard, American Indians influ-
neighboring parcels of land, these ongoing agree- enced the manner in which future negotiations
ments are necessary to public safety and effective would take place, and federal negotiators embraced
policing (Pommersheim 1995, 161). many of these concepts.
Tribes and states also enter into revenue-sharing The influence of European and subsequent U.S.
agreements as a means of resolving conflicts of taxa- treaty-making traditions also altered the way Indian
tion jurisdiction (Fletcher 2004, 5–7). These agree- tribes negotiated. There was a shift away from
ments are typically referred to as compacts. Where tax reliance on oral agreements toward a focus on writ-
jurisdiction is ambiguous or where collection of tax ten documents. Prior to European contact, the treaty
revenues proves burdensome, tribes and states have negotiations of tribes were committed to memory,
negotiations compacts in lieu of federal court litiga- with the entire discussion constituting the binding
tion. One sovereign agrees not to pursue tax claims agreement of the parties. The non-Indians’ insistence
in court, whereas the other sovereign agrees to share on memorializing agreements in writing altered the
tax revenues with the first sovereign. In some com- treaty-making process and, over time, changed the
pacts, the sovereigns agree how the funds are to be way tribes entered into the negotiating process. The
spent in a mutually beneficial manner both for citi- result was a shift in focus: today, many Indian peo-
zens of the state and for citizens of the tribe. ple might know the words of the treaty document
but not the context in which the negotiations arose.
Indians and non-Indians alike initially ap-
Treaty Making Past and Present proached the early treaty negotiations with little or
For more than five hundred years, tribes have no knowledge of each other’s traditions or beliefs.
entered into treaties with the United States and with The language barrier routinely would have made
other international governments. Tribes entered into fluid communications nearly impossible, yet agree-
various treaties with Great Britain, Spain, and other ments were made. In coming together, each side
European sovereigns prior to the American Revolu- influenced the treaty process of the other sovereign,
tion (Deloria, V., and DeMallie 1999, 103). and a unique system of negotiations emerged that
For centuries prior to European contact, tribes included elements of both the Indian and the Euro-
negotiated with other tribes agreements akin to the pean traditions.
treaties they would later negotiate with European The first treaty between America and an Indian
countries and ultimately with the United States. By tribe was completed during the Revolutionary
the time Europeans arrived, tribes were already War, the Treaty of Fort Pitt (Treaty with the
skilled in negotiating treaties and agreements for a Delaware) in 1778. The Delaware made a formal
variety of purposes. Tribes had formed military alliance with the American revolutionaries, and the
alliances and political confederations for centuries. tribe permitted colonial troops free movement
Tribes also had elaborate trade routes that across their territory. In exchange, the Americans
required access to vast territories, including lands agreed to build a fort inside the Delaware Nation to

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Indian Treaty Making: A Native View 7

protect the community when soldiers were else- Cherokee Nation as a result of a post–Civil War
where engaged. Beyond its historical significance, treaty with the United States. The Cherokee Nation,
this treaty was important because it established that like the Osage, the Muscogee Creek, the Seminole,
tribes were sovereign entities with the power of and other Indian nations, entered into treaties of
diplomacy. It also established, in a legal context, that alliance with the Confederate States in 1861. When
tribes were property owners with full dominion the Civil War was over, the United States reestab-
over territory, including the right to exclude others lished ties with the Cherokee Nation, but the Chero-
from their territory. The Delaware were in a position kee Nation agreed to several concessions, including
of strength when negotiating with the colonies. the settlement of other tribes on Cherokee lands.
The relative strength of the Delaware dimin- These post–Civil War treaties were among the last
ished over time, and the tribe later found itself in a official treaties between Indian nations and the
much weaker diplomatic position. Yet whether in United States. The post–Civil War treaty with the
strength or in weakness, the Delaware continued to Cherokee is unique because it precipitates additional
negotiate treaties with other sovereigns to accom- treaties between tribes on the request of the United
plish their goals. States. Rather than using force to require the Chero-
In 1867, the Delaware entered into a treaty with kee Nation to accept the relocation of other Indian
the Cherokee Nation that arguably led to a political tribes, the United States acknowledged that the
dissolution of the Delaware (Treaty between the tribes would work out the terms of relocation and
Cherokee and Delaware–April 8, 1867). The new citizenship in an intertribal treaty. This illus-
Delaware negotiated citizenship rights within the trates how, even toward the end of formal treaty
Cherokee Nation to preserve legally protected status making with the United States, tribes were viewed
for the Delaware people and to ensure a friendly as sovereigns who negotiated with each other and
place to settle. with the United States as a means of diplomacy.
The Delaware story is important because it The United States officially ended treaty making
demonstrates how a sovereign can enter into treaties between the federal government and tribal govern-
for various purposes at various times. Sometime ments in 1871 (25 U.S.C. § 71). The United States con-
tribes are in a position of strength, and sometimes tinued to make formal agreements, although they
tribes face political or physical annihilation. In each were not considered treaties, with tribes well into the
circumstance, the sovereign made a contextual deci- twentieth century. One of the most common subjects
sion and chose to negotiate a treaty to protect its of these agreements was the allotment of tribal
interests or to mitigate a situation. Just as there was lands.
no uniform Delaware approach to treaty making In the late 1800s and early 1900s, the federal
over time, there is no uniform Native perspective on government pushed for Indian lands to be allotted.
treaty making. Rather than holding land in a contiguous land base
In 1867, the Cherokee and the Delaware were with a property law system governed by tribal law,
both in politically weak positions relative to the the United States pressured tribes to divide their
United States. In fact, both tribes were pressured to lands and allow individual Indians to own lands
enter into the intertribal treaty by the United States, without the control or oversight of the tribes. The
and the treaty was executed by both tribes, not in U.S. Congress passed the General Allotment Act as a
Delaware or Cherokee territory, but in Washington, statement of federal policy; however, the federal
D.C., in the presence of, and for the benefit of, fed- allotment policy was not self-executing (Royster
eral officials. 1995, 7–15).
The Delaware were being removed by the Allotment of reservation lands was generally
United States from their territory and relocated implemented only after elaborate negotiations and
inside Indian Territory. Most of the Indian Territory treaty making with the affected tribes. Some tribes
lands had been accounted for, and the federal gov- were successful in avoiding the allotment of their
ernment needed land to implement the Delaware lands altogether. The majority of tribes were pres-
relocation. In a treaty with the United States, the sured to allot their lands, and the details were out-
Cherokee Nation agreed to accept the Delaware lined in tribal agreements with the United States.
along with the Shawnee. The Cherokee agreed both In fact, more than twenty agreements between
to the relocations and to the inclusion of the the United States and tribal governments were made
Shawnee and Delaware people as citizens of the in the years 1876–1895. The United States did not

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8 Governments and Treaty Making

stop making treaties; it simply relabeled the process agreement divided tribal lands into individual allot-
and extended ratification rights to both houses of ments and provided for the ultimate dissolution of
Congress rather than to the Senate alone. the tribal government as a condition precedent to the
During this period, the tribes did not have the extension of U.S. citizenship to tribal members.
same political and military strength they once had Several shifts in federal policy occurred after
had. By this time, tribes had typically been relocated allotment. Since the 1960s, there has been a con-
to reservations or to diminished land bases. Even sistent trend away from the termination of tribal
though very few tribes were militarily conquered by existence toward a policy of respecting tribal self-
the United States, in previous treaties many tribes determination. Tribal governments have rebounded
had agreed to become protectorates of the United and have resumed the exercise of their inherent sov-
States and had thereby abandoned any effort to ereign powers, including the right to negotiate
maintain their own troops. treaties and agreements with other sovereigns.
With no military threat and with increased eco- Indian treaty making continues throughout
nomic dependency of tribes on the federal govern- Indian country today. Many tribes continue to make
ment, the United States continued to gain political agreements with state and local municipalities and
power over the tribes. With increased political with other tribes.
power, the United States began to interfere with mat- Historically, the Cherokee Nation has com-
ters that had previously been internal to the tribe, pleted twenty-two treaties since 1721, first with
including how the tribes governed themselves. Great Britain and then with the United States. The
Increased federal involvement in internal tribal mat- contemporary Cherokee Nation continues to make
ters quickly led to an effort by the federal govern- treaties and currently maintains more than twenty
ment to change the land tenure systems inside ongoing agreements with state, county, and city law
Indian country. enforcement agencies. Most of the agreements were
As such, the allotment agreements were heavily negotiated in the 1990s, and additional negotiations
coerced by the federal government, and the tribes for new agreements are pending.
were powerless to demand many concessions. The The Navajo Nation and the State of Arizona
tribes felt that, if they did not participate in the have negotiated agreements to control the distribu-
agreements, the federal government would unilater- tion of tax revenues between the two sovereigns and
ally act to allot their lands. The tribes were faced to cooperate in the delivery of youth and family pro-
with two options: either to allow Congress to pass a tective services. The Navajo Nation is geographically
law permitting allotment of tribal lands without located within three states, and each of the sovereign
tribal consent or input, or to enter into negotiations states has engaged in negotiations with Navajo
with the federal government for the allotment of Nation officials.
tribal lands on terms more agreeable to the tribes. Tribes in the Puget Sound and Great Lakes areas
Those tribes that entered into negotiations with the have recently negotiated intertribal agreements that
federal government for the allotment of tribal lands ensure equitable rights to fish and wildlife harvests.
did so under duress. Although the tribes vehemently Tribes throughout the country are currently engaged
opposed allotment, they negotiated allotment to in intertribal cooperatives to restore buffalo herds,
avoid being completely voiceless in the process. manage water resources, and clarify jurisdiction.
Tribal input in the allotment process was better than A foundational principle of federal Indian law
no negotiation at all (Leeds 2005, 64–66). has been the role of the federal government in Indian
The federal perspective in negotiating the allot- affairs, to the exclusion of the states. Early cases and
ment agreements was that allotment would end federal statutes preclude states from negotiating
tribalism and prepare Indian people for ultimate cit- treaties with tribal governments. However, when
izenship in the United States. This would make formal federal treaty making came to an end, states
Indian people members of a national minority and and local governments increased their willingness to
end the notion of tribal sovereignty. Therefore, negotiate with tribes, realizing that treaties and
many of the allotment agreements included provi- agreements are mutually beneficial.
sions that dissolved tribal governments and pro- In at least three areas, the federal government
vided for U.S. citizenship. has authorized states to enter into agreements with
The Atoka Agreement of the Choctaw and tribes: (1) law enforcement, (2) the care and custody
Chickasaw Nations in 1897 is a prime example. The of Indian children, and (3) gaming. Tribes that

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Indian Treaty Making: A Native View 9

engage in casino-style gaming routinely negotiate could return home to get the proper assent from
with the states compacts that dictate revenue shar- their tribal constituents.
ing, maintenance of roads, and other governmental Tribes approached the treaty-making process in
infrastructure. These agreements routinely lead to vastly different ways, according to the political,
shared law enforcement responsibilities and clarify social, and cultural contexts. Tribal peoples, like their
jurisdiction of tribal and state courts. counterparts throughout the world, make political
Tribes do not need authorization from the fed- and diplomatic decisions for innumerable reasons.
eral government to negotiate agreements with other The viewpoints and motivations of the Indian lead-
sovereigns. The right to negotiate and make treaties ers who negotiated and signed treaties are equally
is an important component of inherent sovereign diverse. Like sovereigns the world over, tribes have
powers, and tribes will continue to exercise this leaders who fall into different camps. Some leaders
power into the future. Indian treaties are hardly are true statesmen who represent their people in dif-
relics of the past. The ability to negotiate and reach ficult situations and make the tough decisions based
valid legal agreements with other sovereigns is a on what they sincerely believe to be in the best inter-
critical and active component of modern tribal est of their constituents, with or without popular
sovereignty. support. Other leaders succumb to greed and allow
personal gain to influence their decisions, even to the
detriment of the people they represent. Indian coun-
The Diversity of try has had a host of leaders in both camps.
Tribal Perspectives The Indian treaty-making process involved
The Native perspective of treaty making is diverse. leaders who made sincere assessments of the diffi-
More than 560 federally recognized tribal govern- culties faced by their nations and made decisions to
ments have entered into several hundred treaties, enter into treaties even though the will of the people
both ratified and unratified, with the United States. did not wish to enter into treaties. Other leaders
Many other treaties have been negotiated with entered into treaties that directly benefited them per-
tribes, states, and foreign countries. The sheer num- sonally. In the Treaty of Dancing Rabbit Creek of
ber of negotiations and resulting treaties suggests 1830 (Treaty with the Choctaw), Chief Greenwood
there is no single Native approach to treaty making. LeFlore of the Choctaws consented to have the
From tribe to tribe, the customs, laws, languages, Choctaw people removed from their ancestral lands
and philosophies greatly differ. It follows that the and relocated to Indian Territory. Nonetheless, he
concepts of treaty making and diplomacy are dis- was permitted to remain in Mississippi and to main-
tinctive as well. tain ownership of his lands (Foreman 1934, 26).
Many differing factors lead to negotiations, Other tribal leaders received favorable land alloca-
depending on the tribes involved. Many tribes never tions and monetary payments in exchange for sign-
entered into treaties with the United States. Other ing treaties that bound their nations to opposite
tribes entered into multiple treaties with multiple fates.
sovereigns. The Cherokee Nation, for example, has From the perspective of the United States, treaty
negotiated treaties with Great Britain, the United making is a power of the executive branch of gov-
States, and the Confederacy, and with several Indian ernment subject to Senate ratification. Federal agents
tribes, most notably the Shawnee and the Delaware. were sometimes sent out into Indian country to
The Choctaw Nation entered into treaties with Spain negotiate treaties. At other times, tribal representa-
prior to entering into multiple treaties with the tives went to Washington, D.C., or other destinations
United States. The Kashaya Pomo tribe in California outside their home territories to negotiate.
entered into a treaty with Russia in 1817. Other From the tribal perspective, the authority of
tribes have entered into treaties with Mexico and individuals or groups within the tribe to participate
Canada (Deloria, V., and DeMallie 1999, 106–108.) in negotiations varied. In several instances, the indi-
Tribes sometimes negotiated treaties that were viduals recognized by the federal government as
never ratified either by the United States or by their having the power to sign treaties were not the indi-
tribal citizens. The U.S. Senate failed to ratify eigh- viduals who had the right to speak on behalf of the
teen Indian treaties after the tribes had agreed to all tribes. As a result, many tribal communities have not
the provisions (Prucha 1994, 244). But in other cir- recognized certain treaties that the United States has
cumstances, negotiations ended so that tribal leaders ratified and implemented. The federal government

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10 Governments and Treaty Making

has sometimes declared individual Indians chiefs for from their people to speak and negotiate with other
the purpose of obtaining signatures, regardless of sovereigns in matters of trade, war and peace, and
whether the individuals were recognized by the political relationships, but they likely would have
tribes as the official leaders. The United States con- lacked the authority to convey real property.
tinued this practice well into the 1960s by appointing Other tribes did not believe that a small group
tribal leaders for purposes of securing signatures on of people had the authority to represent the full
leases and other legal documents. In these instances, body politic of the tribe, and instead required the
the federally appointed “chiefs” were not popularly approval of general councils before decisions could
elected by the tribal communities. be made. For instance, some treaties had provisions
Some tribes had treaty councils or treaty delega- that affirmatively required subsequent amendments
tions that were clearly sanctioned by the tribal peo- to the treaty to be submitted to a popular vote of the
ple as spokespersons. The Chickasaw Nation, in the tribal people. A single delegate would not have had
1890s, issued official notarized certificates from the the authority to bind the tribe to treaty amendments
tribal government to individuals who were official (Treaty with the Kiowa and Comanche of 1867; Lone
delegates to Washington (Viola 1995, 81). These indi- Wolf v. Hitchcock, 187 U.S. 553 1903). Still other tribes
viduals had the right to negotiate on behalf of the were required to consult particular groups of com-
people and the ability to enter into treaties and bind munity constituents, such as elders or women,
the people they represented. But unlike their federal before a final decision or deal could be completed
counterparts, many of those who had the apparent (Berger 2004, 105).
authority to negotiate treaties were limited in terms
of the subject matter they could concede and were
limited in their powers. The Treaty as a
Some tribes had elaborate property law schemes Negotiation Process
of their own and would freely engage in land ces- In the early days of treaty making with Europeans
sions and land trades. Contrary to some historical and then with the Americans, the process of treaty
accounts, it was not a foreign concept to some tribes negotiation was of more importance to the tribes
to purchase or exchange lands. Many of the tribes in than the legal document that followed. The tribal
Indian Territory in the late 1800s maintained elabo- representatives tended to place more importance on
rate property journals as a matter of official tribal the discussions between the negotiators, the context
government records. These journals are similar to that brought the parties together, the fellowship and
the current county land records in which are interaction between the people involved, and the
recorded deeds and various types of land transac- oral representations and positive assurances made
tions, such as leases, easements, and land sales trans- by the parties (Sullivan 2004, 684–686).
actions. In these tribes, individual citizens could Following the negotiations, the federal repre-
own the surface of the land and were free to alienate sentatives would typically create a written docu-
those lands to other tribal citizens. The underlying ment that constituted the agreement of the parties.
estate, however, was owned by the tribe to preserve Given the fact that few tribal representatives spoke
the contiguous land base and protect territorial sov- English—the written language used in most Indian
ereignty from outside encroachment. treaties—it was the spirit of the negotiations that
Other tribes viewed land as a sacred object that were important to tribal communities, not the piece
could not be traded, sold, or otherwise negotiated. of paper that followed. Tribal leaders who could not
On this philosophy, the Lakota people have refused read or write English routinely placed their marks in
to accept money judgments due to them from fed- the form of an X on the treaty document to register
eral court decisions in which they prevailed on stak- assent to the terms of the document, despite the fact
ing claims. They view return of the land as the only that they were relying on oral promises rather than
solution. Tribes that embraced this philosophy his- on an independent review of the treaty text.
torically would not have conveyed their lands to the Promises and affirmations that were made during
United States through treaties. For such tribes, the the negotiations were as binding, from the Native
authority of the tribal leaders would have been lim- perspective, as the document that followed.
ited to other subject areas in diplomacy. Those tribal Therefore, tribes that later sought compliance
leaders might have possessed delegated authority with oral promises of negotiations were disen-

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Indian Treaty Making: A Native View 11

chanted with the non-Indians’ strict reliance on the up their right to hunt and fish. The case involved
words of the final, written version of the treaty. From several treaties with Chippewa Indians in the Great
the Native perspective, the spirit of the treaty should Lakes region: the Treaty with the Chippewa–October
prevail over the treaty document itself. The spirit of 4, 1842; the Treaty with the Chippewa–August 2,
the treaty was the crux of the promises made in 1847; and the Treaty with the Chippewa–September
good-faith negotiations and not the technical inter- 30, 1854.
pretation of words on paper.
The federal courts, when first reviewing the
treaties in legal proceedings, tended to agree that the The Force and Effect of Treaties
negotiations and historical context were important Many of the guarantees in Indian treaties are
in addition to the treaty text. The federal courts promises that were intended in perpetuity. They are
adopted a set of interpretive rules, to be applied in typically not limited by time. The Treaty with the
treaty cases, that give accord to the Native perspec- Choctaw, 1830, contains language typical of the time
tive of treaty making. These interpretive rules, period to indicate that the treaty was final and that
known as the canons of Indian treaty construction, no further territorial incursions would occur:
have been the basis for tribal legal victories for treaty
enforcement. The canons require that Indian treaties The Government and people of the United
and agreements be liberally construed in favor of the States are hereby obliged to secure to the said
Indians. The canons require that the treaty be inter- Choctaw Nation of Red People the jurisdiction
preted not literally but as the tribe would have and government of all the persons and property
understood the treaty at the time the agreement was that may be within their limits west, so that no
made. In essence, the federal courts that have Territory or state shall ever have a right to pass
applied the canons of Indian treaty construction give laws for the government of the Choctaw Nation
life to the spirit of the treaty rather than relying of Red People and their descendants; and that
solely on a strict interpretation of the text (Wilkinson no part of the land granted them shall ever be
and Volkman 1975, 623–634). embraced in any Territory or State. (ibid. at
Although the federal courts began developing Article 4)
these canons in the 1830s with the legal opinions of
Justice Marshall, the canons have been applied Despite the permanent language in the treaties
recently to take into account the Native perspective that suggests the treaties will live on forever, the
and the negotiations themselves. In a recent U.S. United States has failed to comply with most
Supreme Court case, Minnesota v. Mille Lacs Band of treaties, at least in part. History tells us that the
Chippewa Indians, various treaties with the Chippewa United States always breaks treaties but that Indians
were interpreted to preserve the right of certain believed that a treaty was sacred and could not be
tribes to hunt, fish, and gather in lands that were broken. This story is far too simplistic. Context and
otherwise ceded to the United States. Relying on the circumstances change for tribes just as they change
canons, the Court concluded that the tribal rights for sovereigns the world over. And, although the
survived despite the fact that, in the treaty, the federal government’s history of unilaterally break-
Chippewa agreed to “fully and entirely relinquish ing treaties is well documented, changing tribal cir-
and convey to the United States, any and all right, cumstances and reversals of tribal diplomatic deci-
title, and interest, of whatsoever nature the same sions should also be noted. Tribes, too, have
may be, which they may now have in, and to any abrogated treaties unilaterally.
other lands in the Territory of Minnesota or else- As previously noted, some tribes entered into
where” (Minnesota v. Mille Lacs Band of Chippewa Indi- treaties with competing factions in order to secure a
ans, 526 U.S. 172 1999). favorable stance with the victor of a foreign war.
Strictly interpreted, the treaty language could be During the American Revolution, tribes entered into
viewed as a full cession of all rights to the land. The treaties of alliance with both Great Britain and the
Court, however, went beyond the written words in colonies. Allegiances change, and treaties are renego-
the treaty and considered the larger context, giving tiated. During the American Civil War, tribes with
weight to the tribe’s perspective. The tribe would not long histories of relations with the federal govern-
have understood, at that time, that they were giving ment entered into treaties with the Confederacy.

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12 Governments and Treaty Making

Conclusion Foreman, Grant. 1934. The Five Civilized Tribes.


Norman: University of Oklahoma Press.
The treaty-making process between the United Kappler, Charles J., ed. 1975. Indian Treaties
States and Indian tribes has evolved over the cen- 1778–1883. New York: Interland Press.
turies and continues today in various forms. The Leeds, Stacy. 2005. “By Eminent Domain or Some
most important legacy of Indian treaties is the legal Other Name: A Tribal Perspective on Taking
framework they created. American Indian tribes are Land,” 41 Tulsa Law Review 51.
governments that have negotiated with other sover- Monette, Richard A. 1994. “A New Federalism for
Indian Tribes: The Relationship between the
eigns in an array of political contexts. Modern tribal
United States and Tribes in Light of Our
governments are the outgrowth of indigenous Federalism and Republican Democracy,” 25
nations with centuries of experience in diplomacy University of Toledo Law Review 617.
both internationally and domestically. Pommersheim, Frank. 1995. Braid of Feathers:
Stacy Leeds American Indian Law and Contemporary Tribal Life.
Berkeley: University of California Press.
References and Further Reading Porter, Robert. 2004. “The Inapplicability of American
Berger, Bethany R. 2004. “Indian Policy and the Law to Indian Nations,” 89 Iowa Law Review
Imagined Indian Woman,” 14 Kansas Journal of 1595.
Law and Public Policy 103. Prucha, Francis Paul. 1994. American Indian Treaties:
Brann, Amy C. 2003. “Comment, Karuk Tribe of The History of a Political Anomaly. Berkeley:
California v. United States: The Courts Need a University of California Press.
History Lesson,” 37 New England Law Review Richter, Daniel K., and James H. Merrell, eds. 2003.
743. Beyond the Covenant Chain: The Iroquois and Their
Case, David S., and David A. Voluck. 1978. Alaska Neighbors in Indian North America 1600–1800.
Natives and American Law. Fairbanks: University University Park: Pennsylvania State University
of Alaska Press. Press.
Clark, Blue. 1999. Lone Wolf v. Hitchcock: Treaty Rights Royster, Judith V. 1995. “The Legacy of Allotment,”
and Indian Law at the End of the Nineteenth 27 Arizona State Law Journal 1.
Century. Lincoln: University of Nebraska Press. Sullivan, Julie E. 2004. “Legal Analysis of the Treaty
Debo, Angie. 1970. A History of the Indians of the Violations That Resulted in the Nez Perce War
United States. Norman: University of Oklahoma of 1877,” 40 Idaho Law Review 657.
Press. Viola, Herman J. 1995. Diplomats in Buckskin: A
Deloria, P. S., and Robert Laurence. 1994. History of Indian Delegations in Washington City.
“Negotiating Tribal-State Full Faith and Credit Norman: University of Oklahoma Press.
Agreements: The Topology of the Negotiation Wilkinson, Charles, and John M. Volkman. 1975.
and the Merits of the Question,” 28 Georgia Law “Judicial Review of Indian Treaty
Review 365. Abrogation: ‘As Long as the Water Flows,
Deloria, Vine, Jr., and Raymond J. DeMallie. 1999. or the Grass Grows Upon the Earth—How
Documents of American Indian Diplomacy: Treaties, Long a Time is That?’” 63 California Law
Agreements, and Conventions, 1775–1979, vol. 1. Review 601.
Norman: University of Oklahoma Press. Williams, Robert A., Jr. 1996. “‘The People of the
Fletcher, Matthew L. M. 2004. “The Power to Tax, the States Where They are Found Are Often Their
Power to Destroy, and the Michigan Tribal-State Deadliest Enemies,’ The Indian Side of the Story
Tax Agreements,” 82 University of Detroit Mercy of Indian Rights and Federalism,” 38 Arizona
Law Review 1. Law Review 981.

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Federal Policy and Treaty Making:
A Federal View

F
F
or nearly one hundred years of federal treaty more respectful of tribal sovereignty and property
making with the Indians, from 1778 to 1869, than had the colonists. In particular, settlers from the
the federal government’s main objective colonies had persistently encroached on tribal lands
remained constant: acquisition of as much Indian and engaged in fraudulent trade practices with the
land as possible while minimizing the cost in Amer- Indians, prompting violent Indian response and calls
ican lives and dollars. The U.S. Senate ratified more from the colonists for British military aid. Britain
than 365 Indian treaties during this period in pur- intervened to prevent such offenses to the tribes
suit of Indian land and other resources. The federal because the alternative was involvement of British
government chose treaties as the primary vehicle for troops in costly warfare, and because otherwise the
Indian relations, not only because the European Indians might favor France or Spain, which also had
powers that settled North America had established interests in North America. Not surprisingly, the
such a tradition but also because treaties were Indian nations viewed Great Britain more favorably
deemed the most effective instrument for achieving than they did the new government representing the
American land acquisition goals while minimizing settlers.
the loss of non-Indian lives. Other objectives of fed- To deal successfully with the tribes, the former
eral treaty making changed over time, correspond- colonies knew that unity was essential. Tribes could
ing to changes in broader federal Indian policy. For all too easily exploit rivalries among the colonies
example, in the early years, an important policy aim through separate dealings. Indeed, British policy
was to ensure the loyalty of Indian nations to the had long been to take advantage of divisions among
Americans rather than to compete with European the tribes. Thus, although individual colonies had
powers such as England and Spain. During the mid- interests in land acquisition and trade that drew
dle period, the goals of peace and land acquisition them toward individual arrangements with Indian
were pursued through a policy of removing Indian nations, the newly confederated colonies made col-
nations to reservations far from non-Indian commu- lective overtures. And because of tribal expectations
nities. Toward the end of the treaty-making period, born of decades of relations with the British, the
when tribes could no longer threaten alliance with form such overtures took was predetermined.
European powers and non-Indian settlement west- Appointed representatives of the newly united
ward made separation impossible, treaty provisions colonies, known as commissioners, invited large
to facilitate assimilation of tribal members into non- numbers of tribal representatives from particular
Indian society became more central to the treaty- regions to assemble for what was sometimes called a
making process. council or a treaty. The Continental Congress, which
appointed these commissioners, assigned three dif-
ferent groups to deal with Indians in the north,
Establishment and Conduct of south, and middle areas of the new nation. In each
Indian Relations through Treaties sector, the commissioners carried on Native-inspired
When America declared its independence from ceremonial practices first introduced by the British,
Great Britain in 1776 and embarked on the war to such as condolence ceremonies expressing grief over
free itself from British rule, one of its major chal- one another’s losses, presentation of gifts and strings
lenges was to ensure that tribal forces would become of wampum, and speeches of goodwill. Out of these
allies or at least remain neutral. To attack British first councils emerged an informal alliance with the
troops positioned on the St. Lawrence and the Great Oneida and a formal written treaty with the
Lakes, the Continental Army needed to cross Delaware, signed and sent to Congress in 1778. This
through territory of the Haudenosaunee (Iroquois treaty was the first the Americans concluded with an
Confederation) and the Lenni Lenape (the Delaware) Indian nation and the only one entered into during
in New York and the Ohio valleys. But the obstacles the Revolutionary War. Due to wartime exigencies,
to securing the friendship or neutrality of these the Treaty of Fort Pitt (Treaty with the Delaware)
Native nations were formidable. During the focused more on military and political relations than
pre–Revolutionary War period, Britain had been far on land acquisition. But even that treaty addressed

13
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14 Governments and Treaty Making

property issues, as it acknowledged and guaranteed When Native resentment over the post–Revolu-
the territorial rights of the tribe. tionary War treaties began to manifest itself in pan-
During the brief period of the Articles of Con- tribal alliances and threats of war, Congress and the
federation, from 1781 to 1787, American treaty administration reassessed their approach to treaties.
making continued, but the government’s practices Framers of the new Constitution of 1787 strongly
during that time did not set precedents for subse- affirmed exclusive federal power over Indian affairs.
quent government policy. Although most Indian In Article I, Section 8, known as the commerce
nations had remained allied with the British during clause, the Constitution linked congressional control
the Revolutionary War, the tribes had not partici- over Indian relations to similar authority over rela-
pated in the treaty of peace in 1783 between the tions with foreign nations and among states. Implicit
United States and Britain. Weakened by war but no in this linkage was the view that Indian tribes, like
longer immediately threatened by the British, the foreign countries and states, were governments and
American government wanted to dictate terms of to be dealt with as such. The Constitution did not
peace to the Indians while still minimizing further directly specify, however, that these dealings with
hostilities. The dominant view in Congress was that Indian nations were to be by treaty. Its references to
the Indians had been conquered and therefore sur- treaties were more general. The Constitution autho-
rendered their lands and other claims. Secretary of rized the president “by and with the Advice and
War Henry Knox warned, however, that forcing Consent of the Senate, to make Treaties, provided
terms on the tribes would require military engage- two thirds of the Senators present concur”; prohib-
ment that risked either defeat or a bad reputation ited states from making treaties; and acknowledged
abroad. that properly made treaties would be the supreme
Congress again chose treaties as the preferred law of the land.
means of dealing with the tribes and again In his first administration, however, George
appointed commissioners to “negotiate” with the Washington continued the pattern of conducting
tribes. This time, however, the commissioners’ most Indian relations via treaty and instituted the
directions were to insist on treaty terms involving same ratification process for Indian treaties that was
land cessions and prisoner return rather than to used for foreign treaties. Until the Senate provided
secure the assent of the tribes. Commissioners aban- its ratification by two-thirds vote, the treaties could
doned most of the pretense of adhering to Native not take effect. A remaining question was how much
ceremonies associated with treaty making. As a the Senate would become involved in the treaty
result of this approach, although the Continental negotiations themselves. President Washington
Congress concluded eight treaties with Indian made some early attempts to engage the Senate in
nations during this period, Indian dissatisfaction planning for treaty negotiations. Because the treaties
with treaty terms precluded the possibility of a real entailed significant U.S. financial commitments for
and lasting peace. land purchases, gifts, payment of Indian debts to
Furthermore, complicating and defeating traders, and other purposes, as well as drawing of
American treaty-making initiatives during this boundaries in which settlers and speculators had an
period was uncertainty about the role of states in intense interest, political support was essential. Pres-
negotiating treaties with the Indians. The provision ident Washington soon realized, however, that secur-
in the Articles of Confederation dealing with control ing detailed advance instructions from the Senate
of Indian affairs was ambiguous, at once declaring would be cumbersome and detrimental to U.S.
and then disclaiming congressional power over strategic interests. Later in his administration, he
Indians who were “members of the states.” To add limited his requests to more general guidance.
to the confusion, the section ended with a proviso The return to bilateral, treaty-based Indian rela-
that “the legislative right of any State within its own tions under the new Constitution reflected a hard-
limits be not infringed or violated.” States such as nosed calculation of the relative costs of war and
New York took this language to mean that they had land purchases. Washington’s secretary of war,
authority, under the Articles of Confederation, to Henry Knox, estimated that the cost of fighting the
make their own treaties and proceeded to seek land Indians would be at least $2 million and the loss of
cessions on their own, capturing lands that settlers lives immeasurable. In contrast, eliminating the Indi-
had occupied in violation of congressional bans and ans’ cause for grievance by compensating them for
federal treaty terms. land confiscated under earlier treaties would cost

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Federal Policy and Treaty Making: A Federal View 15

less than $20,000. Knox’s analysis is manifest in the be transferred without its permission. Thus, the bur-
earliest treaties of this period. Notably, land that the den of overcoming Indian resistance to sale fell upon
United States had claimed by right of conquest of the the federal government. The settlers and speculators
Iroquois and the Northwest tribes in the Treaties of did not really care how the land became available for
Fort Stanwix (Treaty with the Six Nations) and Fort non-Indian settlement and purchase; they just
McIntosh (Treaty with the Wyandot, Etc.) of 1784 wanted more land at low cost and without the haz-
and 1785 were purchased from those same Indian ards of war. Because Indians were not U.S. citizens
nations via the two Treaties of Fort Harmar in 1789 capable of voting, the federal government was politi-
(Treaty with the Wyandot, Etc.; Treaty with the Six cally accountable only to the non-Indian population
Nations). and adopted methods suited to meet the settlers’
During this early period under the Constitution, and speculators’ demands.
federal legislation accompanied treaties as a means Federal treaty negotiators resorted to an array
of conducting Indian affairs but did not really of sharp or unsavory methods for obtaining Indian
detract from bilateral agreements as the primary treaties. They also took advantage of government
means of carrying on relations with the tribes. The policies, as well as practices by settlers and traders,
only major piece of legislation, the Non-Intercourse that undermined tribal resistance. Finally, the
Act of 1790, aimed its mandates at non-Indians more United States used its superior control over its own
than at the tribes. It prohibited trade with the Indi- populace to give itself the sole power to purchase
ans absent a federal license, required federal Indian land, in what is known as a monopsony. The
approval of all land transactions with the tribes, and cumulative result of these stratagems was the
applied federal criminal laws to Indian country wholesale transfer of tribal lands to the federal gov-
except where the crimes were committed by one ernment via treaty, with minimal compensation to
Indian against another or where an Indian offender the tribes.
had already been punished by the tribe itself. These The shadier methods of acquiring land by treaty
provisions actually facilitated treaty relations by included taking advantage of superior knowledge of
removing causes for conflict between the United the English language, dealing with individuals or
States and the tribes, such as fraudulent trading groups that were unauthorized to sell, offering secret
deals and improperly authorized land transactions. “gifts” to tribal leaders, playing off one tribe against
Many violations of the Non-Intercourse Act were another, and threatening force. The Cherokees com-
simultaneously treaty violations. plained, for example, that in their treaty of 1791 the
The fact that the United States chose to deal federal negotiator had inserted rights for the Ameri-
with Indian nations via treaties does not really cans without the Cherokees’ knowledge. They fur-
answer the question of whether these treaties were ther charged that the negotiator had bribed the inter-
truly voluntary, bilateral agreements. It was impor- preter to recite the land cession as involving a
tant to the federal government, both to avoid hostili- smaller amount of land than was actually inserted in
ties with the tribes and to present an honorable face the treaty and the payment for the land as twice the
to European nations, to deal with Native nations on amount written in the treaty.
a consensual basis. At the same time, the political The United States frequently tried to locate the
pressure from settlers and speculators was intense to most agreeable tribal leader to conclude land ces-
expand the territory available for white settlement. sions, paying little attention to tribal political organi-
And the United States, saddled with Revolutionary zation or the legitimate authority of the individual(s)
War debts and a new nation to build, was eager to involved. Fortunately for the United States, the
gain control of tribal lands so it could resell to the tribes lacked any effective mechanisms for restrain-
settlers and speculators at a profit. ing unauthorized individuals from making such
From the earliest years of English settlement, it deals. In 1825, after the head chiefs of the Muscogee
had been accepted legal doctrine that the tribes had Creek Nation had refused to sell tribal lands and had
some kind of property claim to the lands they occu- departed the treaty council, the treaty commission-
pied, one that must be extinguished before Euro- ers nonetheless pronounced the council a legal one
peans and their descendants could take full title. Pre- and proceeded to make an agreement with a minor
sumably, that meant that the Indians could refuse to chief. The fact that the treaty offered protection to
sell. And the federal government, like its British the signer suggests that the treaty commissioners
colonial predecessor, had decreed that no land could knew their transaction was with a person of dubious

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16 Governments and Treaty Making

authority to bind the Muscogee Creek Nation. In Another frequently successful strategy of the
1835, with the United States determined to fulfill its United States was to exploit intertribal conflicts over
promise to Georgia to remove the Cherokee from claims to land. Sometimes overtly, sometimes
that state, the United States deliberately chose to implicitly, the United States would warn tribes that,
treat with Major Ridge, the leader of a minority bloc if they did not enter into treaties of cession for par-
of Cherokee supporting removal, rather than with ticular tracts, the federal government would make a
John Ross, the staunch opponent of removal who treaty for the same land with a competitor tribe.
had a majority following. The treaty that was con- Thus, the Muscogee Creeks were surprised to learn
cluded with the Ridge faction specified that it would that the United States had purchased their lands
not be binding unless approved by the Cherokee from the Choctaws. And in 1818, the United States
Nation in council. But after the council met and sought to persuade the Cherokees to sell by threat-
rejected the treaty, the United States sent notice to ening to make a deal for the very same land with
the Cherokees to meet with federal negotiators to the Chickasaws. William Henry Harrison was a
conclude a new treaty. This notice provided that any notoriously successful practitioner of this strategy,
Indians who did not attend would be deemed to taking advantage of the fact that villages sometimes
have approved any treaty signed by the negotiators. included members of several tribal groups that
When the Ross party boycotted the gathering, leav- shared common areas. He would induce representa-
ing only a small number of Ridge supporters, the tives of one group to make a cession, threatening
United States signed a treaty with them anyway— others that they would get nothing if they refused to
the Treaty of New Echota (Treaty with the Chero- go along. That is how he secured a cession of
kee–December 29, 1935). The preamble to the treaty Piankashaw lands in southwestern Indiana in 1804.
justified U.S. reliance on only a small portion of the Theoretically, the tribe that had not made the first
Cherokee Nation by noting the history of negotia- deal could have held out for a separate payment.
tions with the Cherokee and the prior warning that But the United States stuck to a policy of paying less
nonattendance would be treated as assent to the for later claims. And in any event, once settlers
council’s actions. After outraged Cherokee leaders entered the land following the first sale, the land
complained of the methods used to secure the treaty, became depleted of game and less valuable to the
Senator Henry Clay sought to prevent its ratification, remaining tribe.
proposing that the Senate refuse to approve it based Not only did the United States seek to impress
on the absence of authority on the part of the Chero- the tribes with its economic and military might by
kee who signed it. The Senate rejected this proposal sending troops along with treaty negotiators, it
by nearly two to one. sometimes resorted to threats of force to secure
Sometimes the United States bought off the treaty cessions of land. In negotiations with the
legitimate tribal leaders with side deals, which Choctaw in 1820, Andrew Jackson found the tribal
might or might not be acknowledged in the lan- leaders adamantly opposed to selling their land. He
guage of the treaty. In 1790, for example, the Treaty informed them that the United States would wage
of New York with the Creeks ceded most of the war, destroy them, and remove them despite their
Creek lands in Georgia to the United States. “Secret opposition. More circumspectly but no less effec-
articles” in the treaty guaranteed a perpetual salary tively, in 1809 William Henry Harrison informed the
of $1,200 per year to the head chief of the Creek and reluctant Miami that, if they continued to refuse to
perpetual salaries of $100 per year to lesser chiefs. sell their land, he would “extinguish the council
The Chickasaw treaty of 1805 entailed federal pay- fire.” Such threats are antithetical to the notion of a
ments of nearly $5,000 to assorted tribal leaders, a free exchange.
common feature of treaties made at that time. And a The federal government also took advantage of
treaty of 1855 with Pacific Northwest coast tribes private non-Indian practices that made treaty mak-
(Treaty with the Dwamish, Suquamish, Etc.–January ing and land cessions more advantageous for the
22, 1855) (Kappler 1975, 669–673) used special cash American side. Prominent among those practices
annuities for the chiefs to overcome tribal hostility were illegal settlement by non-Indians on tribal
and secure concessions of land. American leaders lands and trading with the tribes that resulted in
such as Andrew Jackson understood, however, that hefty Native debts.
the bribery must be kept secret, or the influence of Illegal settlement by non-Indians weakened the
the chiefs would be destroyed. Indians’ position in treaty bargaining in two ways.

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Federal Policy and Treaty Making: A Federal View 17

First, the presence of non-Indians on tribal lands exchange for cessions of land. The treaties of 1805
brought new microbes, to which the Natives had lit- between the United States and the Cherokee, Chick-
tle resistance. Death and disease left the tribal lands asaw, Choctaw, and Creek, in which the United
abandoned or worth little to those Natives who States acquired eight million acres of land, con-
remained. Second, non-Indian presence and settle- formed to this pattern. After 1825, nearly all the
ment, especially agricultural pursuits and animal treaties signed with tribes in the Old Northwest Ter-
husbandry, depleted the game that supplied an ritories, including the Sac and Fox, the Miami, and
important component of the Natives’ livelihood. the Ottawa, allowed for traders’ claims. The United
Land cleared for agriculture diminished the forest States was sometimes skeptical of the amounts the
habitat for wild game, non-Indians hunted the traders claimed, demanding investigations and
game, and domesticated livestock competed with insisting on documentation. And disputes over the
the game for food. After the game disappeared or traders’ practices sometimes precipitated conflict
fled elsewhere, the lands held less value for the with the tribes, leading the United States to place
tribes, and the Indians were far more willing to limits on the exchanges through the Non-Intercourse
enter into treaties of cession. For the settlers, the les- Acts and otherwise. But the accumulation of debts
son was clear: trespassing on tribal lands would provided incentives both for the Indians to cede
ultimately be rewarded by the availability of new lands in the treaties and for traders to lobby for such
land. It is difficult to imagine a greater incentive for treaties.
illegal non-Indian settlement on lands previously Perhaps the most powerful factor producing
guaranteed to the tribes. Illegal settlement persisted land cession treaties with the Indians was the federal
despite the federal prohibitions on such settlement government’s effective control over who could pur-
and the concern of the United States that squatters chase lands from the tribes. Like the British, the
would infuriate the Indians and precipitate costly United States determined that it would be highly
wars. Of course, legal settlement had some of the advantageous to the non-Indian population as a
same impact as illegal settlement—non-Indians whole to restrict the market for Native lands. Partly
reaching the furthermost reaches of land purchased it was a military calculation. Speculators and other
from the tribes would also spread disease and thin private parties that had done business with the
the game, yielding further land cessions. And the tribes in the early decades of European settlement
United States encouraged such settlement by selling sometimes cheated the Indians, misstating boundary
lands purchased from the Indians at a discount, lines or providing defective goods in exchange for
hoping for large benefits down the line through the land. The tribes often responded to such prac-
future land sales. tices with attacks on local settlers, and the settlers
The other private practice that the United States expected the U.S. military to come to their rescue.
saw as a boon to treaty negotiations was the trading Requiring federal permission for the sale of tribal
that took place between non-Indians and tribe mem- lands, as provided in the Non-Intercourse Acts,
bers. Contact with Europeans had left the Indians helped prevent such outbreaks.
dependent on trade goods such as guns and cooking From a business point of view, the absence of
utensils; and after the decline of the fur trade due to multiple bidders for tribal lands left the tribes at the
depleted stocks of game, land was the major asset mercy of the federal government. Once the War of
the tribes could use to exchange for such goods. As 1812 eliminated the opportunity for Native dealings
Indian trade debts accumulated, the traders pressed with Great Britain or any other European power, the
the United States to arrange land cessions that United States had a monopsony—a buyer’s monop-
would put cash in the hands of the Indians, who oly. Freed from the possibility of bidding wars, the
would in turn be obliged to use the funds to repay non-Indian population could benefit from rock-
their debts. Alternatively, traders recommended cut- bottom sales prices to the United States, so long as
ting out the middle step and giving the cash directly the United States was willing to forgo substantial
to them. For example, by the end of the eighteenth profits. In fact, the United States was in such a supe-
century a single trading firm, Panton, Leslie and rior bargaining position by virtue of its monopsony
Company, had acquired many of the debts owed by that it could afford a 5,000 percent markup on the
members of the southeast tribes. Panton, Leslie lob- land and still sell at prices advantageous to the set-
bied the U.S. government to make treaties in which tlers. As Missouri senator Thomas Hart Benton
the Americans would pay off tribal debts in noted in 1826, the United States was buying land

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18 Governments and Treaty Making

from the Indians at two cents or less per acre and traders and to create jobs for political cronies, not to
selling it to settlers for $1.25 per acre or more. Some compensate the Indians or provide for their future
tribes did better, especially as they came to value well-being. Ultimately, however, federal treaty mak-
their remaining land and to resist parting with it. But ing ended because the House of Representatives
the Senate was vigilant in amending treaties to became resentful of demands that it appropriate
reduce the size or duration of payments, and the money to fulfill obligations contained in treaties it
U.S. Claims Commission, more than one hundred had had no part in ratifying. A particular source of
years later, awarded more than $800,000,000 to tribes irritation was a provision in the Osage treaty of 1868,
mostly for “grossly inadequate and unconscionable” replicated in some other treaties that ceded Indian
payment for ceded lands. lands directly to the railroads rather than to the gov-
The treaty system of pressure, trickery, and hard ernment for addition to the public domain and resale
bargaining, coupled with the outward form of bilat- to needy settlers. But members of the House were
eral, consensual relations, suited American interests also unhappy with treaties of 1867 and 1868 involv-
well. Straightforward conquest would have cost too ing tribes of the plains along with the Navajo, com-
much in lives and dollars. Bargaining in accordance plaining that they supplied the tribes with too much
with honorable principles of contract would have money over too long a period of time, thereby delay-
cost too much as well and would have taken more ing the day when tribe members would feel pressure
time than eager settlers, speculators, and traders to give up their tribal affiliations, accept non-Indian
were willing to tolerate. The treaty policy the United “civilization,” and become self-reliant. Attacking the
States adopted required some Indian wars and took treaty-making system more broadly, one representa-
longer than some U.S. citizens wished. It reflected a tive asserted that “the idea of this Government mak-
compromise between the rough-and-tumble fron- ing treaties with bands of wild and roving Indians is
tiersmen, who preferred swift seizure of tribal lands simply preposterous and ridiculous. It is not good
at the risk of war, and the interests of well-placed judgment or statesmanship; it is child’s play, nothing
easterners who wanted to treat the Indians more more and nothing less.” Beginning in 1868, the
honorably and respect their property rights. House refused to appropriate funds to fulfill
Indian treaties represented such peculiar bar- promises made in the 1867 and 1868 treaties, despite
gains that influential Americans began to question the fact that the Senate had ratified the treaties.
their use altogether. Georgia’s governor, speaking in Finally, in 1871, the impasse between the houses of
1830 at the height of the Cherokee removal contro- Congress ended when they agreed upon legislation
versy, declared that “treaties were expedients by that would affirm the validity of past treaties but
which ignorant, intractable, and savage people were declared that “hereafter no Indian nation or tribe
induced without bloodshed to yield up what civi- within the territory of the United States shall be
lized peoples had a right to possess by virtue of that acknowledged or recognized as an independent
command of the Creator delivered to man upon his nation, tribe, or power with whom the United States
formation—be fruitful, multiply, and replenish the may contract by treaty.” Henceforth, agreements
earth, and subdue it.” Congress expressed a similar might be made with the tribes, but they would only
view, stating that payment for tribal lands was “but become law when enacted into legislation by both
the substitute which humanity and expediency have houses.
imposed, in place of the sword, in arriving at the
actual enjoyment of property claimed by the right of
discovery, and sanctioned by the natural superiority Specific Treaty Objectives
allowed to the claims of civilized communities over and Provisions from a
those of savage tribes.” Federal Perspective
By the middle of the nineteenth century, even The only treaty made during the Revolutionary War,
those who viewed themselves as friends of the Indi- the Treaty of Fort Pitt with the Delaware Nation
ans raised doubts about the treaty system, calling it a (1778), manifests the fledgling American nation’s
farce. Henry Whipple, Episcopal bishop of Min- desire to gain support in its conflict against Great
nesota in the 1860s, urged the United States to deal Britain. Each signer agreed to assist the other in
with the tribes as wards rather than as independent times of war, and the Delaware specifically agreed to
nations. The real purpose of the treaties, he allow free passage to U.S. troops across its lands. The
observed, was to pay worthless debts of the Indian United States, in turn, agreed to build a fort so that

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Federal Policy and Treaty Making: A Federal View 19

the Delaware elders, women, and children could be “good faith” and directed its Indian agents to reduce
protected while the warriors “engaged against the such sources of irritation to the tribes as fraudulent
common enemy.” The sovereignty of the Delaware is traders and encroaching settlers. The result was a
acknowledged in a requirement that representatives series of treaties, exemplified by the Treaty of Hol-
from both nations, sitting together, be empowered to ston with the Cherokee, made in 1790 and reaf-
try individual wrongdoers, either Indian or non- firmed in 1794, and the Treaty of Canandaigua with
Indian. So eager was the United States for a the Iroquois, made in 1794. These treaties more
Delaware alliance that it also promised to guarantee clearly recognized that the Indian nations were
the territorial integrity of Delaware lands and to reserving their own lands; clarified boundaries
allow friendly tribes, under the leadership of the where they had been in dispute; increased the
Delaware, “to form a state whereof the Delaware amount of compensation through annuities, goods,
nation shall be the head, and have a representation and otherwise to be paid to the Indians; and, in the
in Congress.” This treaty made little difference dur- case of the Iroquois, affirmed that the United States
ing the war, and the Indian representation in Con- would not claim any Indian lands unless the Indians
gress never came to pass. wished to sell them. War with the Indians erupted
With so many tribes having sided with Britain nonetheless in the Northwest Territory, as the Indi-
during the Revolutionary War, the earliest postwar ans appeared to be unifying under the leadership of
Indian treaties aimed at land acquisition and the Tecumseh (Shawnee), among others. It was not until
return of prisoners but also at affirming the exclusive the Battle of Fallen Timbers, in 1794, when the British
loyalty of the tribes to the United States and main- demonstrated their reluctance to come to the aid of
taining peace with the tribes. Convinced that it had the Indians, that the United States was able to
conquered the tribes when it defeated the British, the achieve the larger treaty cessions of land that non-
new federal government believed it could use the Indian settlers craved. In the Treaty of Greenville,
treaties to demand additional tribal lands of the Six which followed that conflict, the Indians relin-
Nations, the tribes of the Old Northwest, and the quished their claims to the southern two-thirds of
southeastern nations. Thus, treaties such as those at Ohio and a small part of what is now Indiana in
Fort Stanwix, Fort McIntosh, Fort Harmar, and exchange for compensation and continued hunting
Hopewell set boundary lines, with Indian settlement rights in the ceded lands. But because the United
allowed on one side and outlawed on the other. States remained militarily weak, with isolated forts
These treaties also included acknowledgements by dotting a far-reaching boundary along the Ohio, it
the tribes that they were “under the protection of the continued to pursue diplomacy with the Indians
United States and of no other sovereign whatso- rather than attempting to subdue them through
ever.” To assure the dominance of the United States brute force. Indeed, both the Treaty of Canandaigua
and to avoid sources of conflict, these treaties also and the Treaty of Greenville were concluded through
reserved lands for U.S. military forts and trading ceremonies showing respect for Indian ways, return-
posts, denied American protection to illegal settlers ing to Indian-preferred vocabulary, such as “Great
on Indian lands, and required that the tribes deliver Father” for the United States.
up Indians who committed certain crimes against Even the boundaries created by these more sub-
American citizens. stantial treaties of cession were difficult for the
The simultaneous goals of peace with the Indi- United States to maintain, however, given the politi-
ans and acquisition of their lands were difficult for cal pressures from non-Indian settlers. So, in these
the federal government to maintain, however. The early decades of the nation, leaders such as Wash-
tribes resented their dispossession under the treaties, ington’s secretary of war, Henry Knox—and, later,
and the land-hungry settlers ignored even those Presidents Thomas Jefferson, James Madison, and
boundaries, establishing themselves on lands allo- James Monroe—held out hope that the Indians
cated to the Indians. Furthermore, in the years before could be persuaded to part with even larger tracts of
the War of 1812, the British remained a persistent land if the men would only give up hunting as a
threat to the fledgling United States, and the possi- way of life and take up agriculture, which had
bility of an Indian-British alliance worried American heretofore been the province of women. As Jefferson
political leaders. Concerned about the possible out- said in 1803, “[W]hile the Indians are learning to do
break of war with the Indians, Congress announced better on less land, our increasing numbers will be
its intention to deal with the Indians on the basis of calling for more land, and thus a coincidence of

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20 Governments and Treaty Making

interests will be produced between those who have Jefferson’s negotiating team produced mixed
land to spare and want other necessities and those results, with the Cherokees and the Creeks reluc-
that have necessities to spare and want land.” The tantly ceding as little land as possible and the
treaties of this time reflected that objective. Thus, for Chickasaws and the Choctaws offering more. The
example, the Treaty of Greenville (Treaty with the Treaty of Mount Dexter with the Choctaws, made in
Wyandot, Etc.–August 3, 1795; Kappler 1975, 39–45) 1805, illustrates the treaty terms most sought by the
specified that a tribe could ask that a part of its United States during this period. In exchange for a
annuity be paid out in the form of “domestic ani- large cession of lands in southern Mississippi Terri-
mals, implements of husbandry, and other utensils tory, the United States paid $50,000, $48,000 of
convenient for them, and in compensation for use- which was to enable the tribe “to discharge the debt
ful artificers who may reside with or near them, and due to their merchants and traders. . . .” Jefferson
be employed for their benefit.” focused heavily on the location of the ceded lands in
Indian debts to traders also figured into the relation to U.S. military objectives in the South. A
treaties of the young United States. As the numbers treaty the same year with the Creeks included
of game and fur pelts on Indian lands diminished allowance of a horse path through Creek country as
due to non-Indian encroachment, Indians had well as the sought-after land cession, but compensa-
much less to exchange for the manufactured goods tion paid was not specifically targeted for debt
to which they had become accustomed, and found repayment.
themselves in greater and greater debt to traders. In the Northwest Territory, then governed by a
As of 1803, for example, the Creeks alone owed young William Henry Harrison, the federal govern-
$113,000. The only thing of value that the Indians ment’s objective was to prevent Indian wars by
had to offer was their land. But given the federal removing non-Indian settlers trespassing on Indian
government’s restrictions on transfer of Indian lands and to facilitate cessions by resolving bound-
lands to private parties, the Indians could not settle ary disputes among the many tribes in that area and
their debts by giving land directly to the creditors. fostering Indian assimilation. As traditional means
So the non-Indian traders began to pressure the of subsistence declined for the tribes, treaties on such
U.S. government to negotiate land cessions with the terms became easier to achieve. In the 1809 Treaty of
tribes, with the expectation that federal compensa- Fort Wayne with the Delaware, Potawatomi, Miami,
tion to the tribes would quickly be diverted to sat- and Eel River tribes, for example, the United States
isfy the mounting obligations. Thus, debt satisfac- acquired more than two and a half million acres at
tion and land acquisition proved to be comfortable less than two cents an acre, giving the United States
companions as U.S. treaty aims. President Jefferson control over the land in the Old Northwest. In words
even suggested that the Indians be encouraged to that ring hollow in hindsight, Harrison assured the
run up such debt at U.S. factories that they would Indians that “[t]he United States would always
become impelled to “lop them off” with land adhere to their engagements. To do otherwise would
cessions. be offensive to the great spirit and all the world
In the first decade of the nineteenth century, the would look upon them as a faithless people.” This
United States pursued these aims with an emphasis expressed concern about world opinion probably
on proper diplomacy; Jefferson’s secretary of war, counted for little with federal officials, because the
Henry Dearborn, urged his negotiators to use “all European powers of the day were busy conducting
prudent means in your power . . . to reconcile [the their own colonial campaigns. For them to condemn
Indians] and to remove every obstacle to their the United States in its treatment of the Indians
mutual friendship.” In addition to seeking land and would have been hypocritical and contrary to their
debt repayment, Jefferson wanted to obtain rights-of- own interests.
way through Indian country for roads that would Other treaties of this era, such as the treaty with
knit the growing nation together, to consolidate the the Osage made in 1808 and ratified in 1810,
newly acquired western territory of the Louisiana affirmed that the Indians would not sell lands to any
Purchase, and to secure the Mississippi valley against foreign power or to citizens of the United States
foreign invasion. The Spanish presence in Florida without approval of the federal government, and
was a particular concern; Jefferson noted in 1808 that offered certificates redeemable for trade at the fac-
the United States needed a strong buffer of militia tory or fort, but only to Indians who remained
between Indians and Spanish-controlled Florida. friendly to the United States. The treaties of this

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Federal Policy and Treaty Making: A Federal View 21

decade reflect the growing inequality of power that provisions for removal of the Indians, entailing
between the United States and the Indian nations, exchange of lands east of the river for lands to the
the tribes acknowledging the friendship and protec- west, found their way into the treaties. One illustra-
tion of the federal government and the treaties them- tion of this new thrust was the treaty of 1817 with
selves establishing terms that were less and less the Cherokee, in which they gave up two large tracts
accommodating to the tribes. At the same time, these in Georgia and North Carolina for land of equivalent
treaties also acted as a relatively new form of politi- size on the Arkansas and White rivers. Eleven years
cal recognition of the tribes. By attesting to the legiti- later, the same group of western Cherokee signed
macy of the Indian tribes with whom it signed for- another treaty moving them beyond the western
mal treaties, as well as the tribes’ “Indian title” to boundary of the Arkansas Territory, with emphatic
their lands, the United States was consolidating the language promising them a “permanent home, . . .
status of Indian nations as distinct political entities. that shall never, in all future time, be embarrassed by
Although the U.S. negotiators may not have having extended around it the lines, or placed over it
intended this result of governmental recognition, the the jurisdiction of a Territory or State. . . .” Although
ingrained practice of dealing through treaties led the many Cherokees steadfastly resisted this plan, a sig-
United States along that path. nificant number had chosen to move west.
Although the Treaty of Fort Wayne (Treaty with Along with the dissenting group of eastern
the Delaware, Etc.–June 7, 1803) succeeded in shift- Cherokees, many other tribes were unwilling to
ing land from tribes to the United States, it did not exchange lands and remove. So, with them, the
produce peace with the Indians, many of whom con- United States settled for cession of the largest tracts
sidered its Indian signers unauthorized to make possible, reserving small domains for the tribes and
such an agreement. Siding with the British in the heavily promoting the tribes’ shift to agrarian
War of 1812, these Indians also suffered the conse- pursuits.
quences of U.S. victory. Indeed, Francis Paul Prucha, One interesting issue that arose with regard to
who has written definitive works on Indian treaties, these reserves was whether the reserved lands could
describes the War of 1812 as “a watershed in the his- be held by the Indians in private ownership, or fee
tory of treaty making with the Indians.” With defeat simple. A treaty in 1817 negotiated with the Wyan-
of the British in 1812 and the Creeks in 1814, the dot, Delaware, Shawnee, Seneca, and others at the
Indians no longer posed a serious threat east of the Rapids of the Miami incorporated such a scheme.
Mississippi, and the United States assumed the dom- But this form of tribal landholding threatened the
inant position in North America. Postwar treaties legally questionable but rapidly exploding private
with Indian tribes confirmed this arrangement market for rights to acquire former Indian lands
through terms that were less and less accommodat- once the United States extinguished the Indians’
ing to the tribes. For example, the punitive 1814 right of possession. These “rights of preemption”
treaty with the Creeks at Fort Jackson ceded would be valueless if the Indians acquired full own-
immense Creek land holdings, roughly twenty mil- ership through the treaty. So the treaty had to be
lion acres in Alabama and Georgia, without compen- modified before the Senate would ratify it; and this
sation. Under the treaty, the land was deemed “an treaty, as well as future treaties with other tribes,
equivalent for all expenses incurred in prosecuting specified that reserved lands would be held “in the
the war to its termination.” The treaty also gave the same manner as Indian reservations have been
United States rights to establish military and trading heretofore held.”
posts and roads within Creek territory, and all hos- With little room to bargain in this immediate
tile Creeks who had fought against the United States postwar period, the Indians focused on the form and
were to be surrendered. amount of their compensation. A particular concern
Over the next fifteen years, treaties with the of the United States was to avoid perpetual annuities
Indians produced larger and larger land cessions. as much as possible, because they were inconsistent
With lands now available west of the Mississippi with the U.S. goal of assimilation. Like rehabilitative
through the Louisiana Purchase, the United States alimony in modern-day divorce cases, payments to
began to seek relinquishment of all Indian lands east Indians were to be made only for the period of time
of the river and removal of the tribes to guaranteed it would take, as treaty negotiator William Clark
lands in the West. Although this idea did not origi- wrote, “to teach them to subsist themselves by the
nate after the War of 1812, it was only after the war arts of civilized life. . . .” In the treaty of 1825 that

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22 Governments and Treaty Making

Clark negotiated with the Osages, for example, live- treaty promises to the Indians, arguing that the very
stock, farming utensils, and technical assistance signing of these treaties implied that Indian commu-
were primary elements. A treaty of 1826 with the nities had governments of their own not subject to
Potawatomi, typical for its time, promised annual the laws of the United States. Not only did the Con-
sums for the education of Indian youth. stitution require adherence to the treaties, but so did
Toward the end of the 1820s, as positions of Christian morality, which made it a sin to violate
power and tactics changed, U.S. negotiators began to one’s solemn commitments.
suggest that treaties were not the best way of dealing Georgia and its supporters, including Baptist
with the tribes. In the South, Andrew Jackson, who missionary Reverend Isaac McCoy and Georgia
had risen to prominence in wars with the Creeks, politician Wilson Lumpkin, contended in response
argued that Indians have only “possessory rights to that treaties had been a huge mistake and were
the soil, for the purpose of hunting and not the right nothing more than a mockery and a farce. How,
to domain,” concluding that “[C]ongress has the full Lumpkin asked, could a guardian make a govern-
power, by law, to regulate all the concerns of the ment-to-government agreement with its own ward?
Indians.” Jackson rejected the idea that Indians were Those sharing his view pointed to the treaty provi-
independent nations with rights of sovereignty, a sions acknowledging the Cherokees’ dependence
position echoed in the statement of the secretary of on the United States, as well as the reality of
war, Henry Calhoun, that “it is perfectly absurd to changed circumstances. Although agreements are
hold treaties with those within our limits, as they made precisely to protect against changed circum-
neither are, nor can be, independent of our govern- stances, that fact did not appear to give Lumpkin or
ment.” This critique of treaty making was to gain the others of his ilk any pause. In the end, the
force over time; but the practice continued for more Cherokee bill passed; Jackson signed it into law on
than another forty years, with more than sixty-seven May 28, 1830. Unwilling to acquiesce, the Cherokee
Indian treaties ratified while Jackson himself was made passionate appeals to Congress and pursued
president. their cause through litigation before the U.S.
Treaties of the Jacksonian period of the 1830s Supreme Court. In two decisions rendered by Chief
pressed hard on the Indians to remove from areas in Justice John Marshall in 1832, the Court affirmed
the East that were occupied or coveted by non- the Cherokees’ status as a “domestic dependent
Indians. In the Old Northwest, a majority of the nation” (Cherokee Nation v. Georgia) occupying and
treaties provided for the reduction of the land base governing a territory that was not subject to Geor-
without removal. But several provided for permis- gia state law (Worcester v. Georgia). These decisions
sive removal and eight for obligatory removal. Some established rules of interpretation, or canons of con-
of these treaties reserved land for chiefs or other struction, for Indian treaties. Among those rules
individuals or bands that refused to migrate beyond were requirements that treaties be interpreted as
the Mississippi. the Indians would have understood them and that
In the South, even more powerful storm clouds ambiguities in treaty language be resolved in favor
of removal gathered. The best-known treaties dur- of protecting the Indians’ sovereignty and property.
ing this time involve the Cherokee, whose national In effect, the Court established, as a general default
sovereignty and right to refuse sale of their lands position, that treaties would not defeat preexisting
had been recognized in the Treaties of Hopewell Indian rights, whether inherent in the tribes or rec-
(Treaty with the Cherokee, 1785) and Holston ognized in earlier treaties, unless Congress was
(Treaty with the Cherokee, 1791). When Georgia clear in expressing its intent to do so. These princi-
boldly extended its laws over Cherokee territory, ples reflected basic rules of contract interpretation
and the federal government could not persuade the that favored the much weaker party in negotia-
remaining Cherokees to sell their land and leave for tions, especially when that party is forced to negoti-
the Indian Territory, the stage was set for a national ate in a foreign language. They also may have
debate on the sanctity of Indian treaties. A bill to stemmed from the Court’s awareness that Indians
remove the Cherokee without their consent made its were not sewn into the constitutional fabric in any
way through the Congress, prompting angry way that resembled consent.
protests and avid defense. The Jackson administration snubbed Chief Jus-
Protestant minister Jeremiah Evarts was the tice Marshall’s decision and continued to foist
most vocal and eloquent proponent of keeping removal treaties on the Cherokee and other south-

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Federal Policy and Treaty Making: A Federal View 23

ern tribes. Even as the debate over Cherokee and brutally carried out the removal. Although the
removal swirled about the Capitol, the Choctaw suffering of the Cherokee was immense, it was
capitulated to what they believed was inevitable, redeemed to some extent by the treaty provisions
signing the Treaty of Dancing Rabbit Creek (Treaty affirming political autonomy and land rights of the
with the Choctaw, 1830). Indeed, Jackson’s negotia- Indian nations, born of the Cherokees’ victory in
tors had told them that, if they refused to move Worcester v. Georgia and the forceful pro-treaty
west, state law would be imposed on them, and rhetoric of Jeremiah Evarts and others. Even Presi-
their tribal existence would no longer be recog- dent Jackson could not abandon treaty making,
nized. The treaty offered many inducements and though he thought it a farce. The practice was too
reassurances to secure the Choctaws’ land cessions embedded in American and Native thinking about
and emigration. Departing from past practice, the proper ways of conducting relations.
new lands west of the Mississippi were granted to During this same period, outside the South the
the tribe in fee simple, “to inure to them while they same pressures for removal prevailed, and U.S.
shall exist as a nation and live on it.” Furthermore, treaty policy took a similar form. However, in the
the United States promised that, in exchange for Old Northwest, the tribes were smaller and had been
removal, it would secure to the Choctaws “the juris- moved about on numerous occasions already, lead-
diction and government of all the persons and prop- ing to some variations from the southern treaties.
erty that may be within their limits” and would pre- Thus, although groups of the Ho-Chunk and
vent the establishment of any state or federal Potawatomi tribes entered into relatively standard
territory upon their lands. Protection against unau- removal treaties, some other tribes managed to stay
thorized intruders as well as domestic and foreign put. The western bands of Chippewa, for example,
enemies was included as well. And additional annu- made the treaty of 1837, signed at Fort Snelling, in
ities and schooling for Choctaw youth were also which they gave up large wooded tracts in eastern
part of the package, along with houses for the Minnesota and north central Wisconsin in exchange
chiefs. For those who could not bring themselves to for annuities, settlement of traders’ claims, payoffs to
leave, individual lands would be allotted in fee powerful leaders, and retention of hunting, fishing,
within the ceded territory. and rice-gathering rights on the ceded lands “during
The treaty with the Choctaw was followed over the pleasure of the President of the United States.”
the next three years by similar treaties with the Although President Zachary Taylor tried to effect
Chickasaw, the Creeks, and the Seminoles. But the removal in 1850, the Chippewa remained in place,
Cherokees, most of whom had refused to leave for and the unilateral nature of the removal order ulti-
the West under the 1817 and 1828 treaties, tried to mately led the Supreme Court to declare it void.
resist removal, staking their position on the favor- Removal fever also found its way into treaties
able ruling they had received from the U.S. Supreme with the New York tribes. A powerful land company
Court. At this point, the United States was able to held preemption rights to the Indian lands and
exploit a division within the Cherokee Nation, one wanted the Indian title extinguished. Furthermore,
that pitted the Treaty Party, made up of those who the City of Buffalo was eager to expand into areas
wanted the best bargain possible in light of then part of the Iroquois territory. Treaties in 1831
inevitable removal, against a group of adamant and 1832 with the Menominee tribe of Wisconsin
removal opponents. Only 350 Cherokee among the had provided land for westward-migrating Oneidas.
nearly 20,000 remaining in Georgia supported the But the Treaty of Buffalo Creek in 1838 with the
Treaty of New Echota in 1835, which was tailored Seneca and other New York Indians succeeded in
much like the Choctaw Treaty of Dancing Rabbit achieving land cessions without actually resettling
Creek, ceding eastern lands in exchange for new the tribes on the territory in Kansas that was set
lands in the West to be held in fee simple. While the aside for them. The Seneca and the Oneida remain-
payment amounts differed, the only major distinc- ing in New York stayed on in the state, albeit on
tion between the Cherokee and Choctaw treaties was tracts much smaller than before.
that the Cherokee agreement did not allow individ- The removal plan, premised as it was on the
ual allotments within the ceded lands. potential for complete separation of Indian from
More than 15,000 Cherokees signed a petition non-Indian populations, broke down in the 1840s
protesting the treaty of 1835 and attesting to its ille- and 1850s as improved transportation, acquisition
gitimacy. Nonetheless, President Jackson forcibly of new territories in the Southwest and Northwest,

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24 Governments and Treaty Making

and increased immigration caused non-Indian set- Elsewhere in the West, however, treaty making
tlement to catch up with the Indians’ western lands, was actively under way during this period of the
destroying their traditional means of subsistence. 1840s and 1850s. On the plains, for example, the
Suddenly, federal treaty policy had to contend with destruction of buffalo herds that accompanied west-
new clashes between settlers and the tribes and had ern settlement prompted the commissioner of Indian
to find ways the two groups could coexist. Many of affairs, William Medill, to seek relocation of the Indi-
the newly encountered tribes violently resisted ans into “colonies” north and south of the main
encroachment on their lands, and combating them routes of migration. The Indians would also be com-
stretched the capacity of the relatively young nation. pensated for the rights-of-way and for loss of the
Moreover, the legal apparatus that accompanied buffalo. Thus arose the Treaty of Fort Laramie of
some of these new tribes, especially the fee land title 1851 with the Sioux, Cheyenne, Arapaho, Crow,
of the Pueblo tribes formerly under Mexican rule, Assiniboine, Gros Ventre, Mandan, and Arikara, in
presented new challenges. Treaties continued to be which boundaries were set among the tribes and
the preferred mode of conducting Indian relations with the United States, and the Indians pledged
during these years, and dozens were ratified; but peace with the United States and cessation of hostili-
there were notable exceptions and breakdowns in ties among themselves. The tribes further agreed to
the process, and the types of treaty terms began to allow the United States to build forts and roads
shift. within their territories and to pay restitution to non-
Treaties of the 1840s and 1850s focused less on Indians harmed while lawfully passing through the
removal west and more on confining the western Indian lands. For its part, the United States promised
Indians on smaller and smaller reservation tracts so generous annuities of $50,000 per year for 50 years
that non-Indian migration and settlement would not and to protect the Indians from predation by the
be impeded. The alternative possibilities of curtail- whites. This treaty was later superseded by others
ing emigration or protecting the Indians against tres- less favorable to the tribes.
pass were politically difficult for a U.S. government A few years later, in negotiations with tribes
accountable only to the non-Indians; and the old west of Missouri and Iowa, another commissioner of
policy of removing the tribes to an area beyond Indian affairs, George W. Manypenny, made a con-
white immigration and settlement was no longer certed policy of including treaty provisions for allot-
physically possible. Confinement on small reserva- ment of reserved lands. This new policy of allotment
tions was the preferred solution simply because was designed to break up the tribal estate by con-
there was no place further west to move the Indians verting tribal ownership into private ownership title
that had not already been settled by non-Indians or held by individual tribal members. Although some
occupied by other tribes. federal policymakers tried to argue that private
Sometimes the demands of non-Indian settlers ownership would benefit the Indians, a powerful
were so great that multiple tribes had to be collected, reality was that allotment served non-Indian inter-
more or less arbitrarily, onto a single reservation. ests in land acquisition. Once in private ownership,
Thus, for example, in the Pacific Northwest most of the lands became much more accessible to non-
the treaties were made with “confederated tribes Indians through tax sales, adverse possession, and
and bands” in order to limit the amount of territory sharp dealing. Foreshadowing Congress’s enactment
set aside for the Indians. The experience in Califor- of the General Allotment Act of 1887, this treaty
nia was even more extreme. After the Treaty of policy of allotment also envisioned termination of
Guadalupe Hidalgo ended the war with Mexico in tribal existence in the near future. Another feature of
1848, the U.S. Senate refused to ratify any treaties at Manypenny’s treaty policy was an end to permanent
all with the California Indians, because the lands annuities as a form of payment for land cessions.
that the proposed treaties had set aside for them Under his treaties, the Indians were required to
were considered too valuable by the whites, and relinquish all claims to funds owed under previous
there was nowhere else to place the reservations. treaties, and newly promised payments were to be
Only after several decades had passed and sympa- paid to the tribes on a rapid timetable. This new
thy for the “landless” California Indians had method of payment was consistent with the plan for
mounted did Congress and the executive branch near-term termination of tribal entities. Among the
establish small reservations, or rancherias. many treaties made on this basis were those with the

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Federal Policy and Treaty Making: A Federal View 25

Otoe and Missouria tribes in 1854 and the Shawnee strongly resist any “civilizing” efforts by the United
in the same year. States.
A series of treaties made during this period with Dole’s position won out, but only for the next
the tribes of the Pacific Northwest, negotiated by ter- five years. Skirmishes with the Indians along the
ritorial governor Isaac Stevens, largely adhered to emigrant trails and fears for the security of the
the framework of the Manypenny treaties. Nonethe- newly constructed transcontinental railway led the
less, they had to take into account the tribes’ resis- United States to sponsor the Peace Commission in
tance to moving from their ancestral lands and giv- 1867, giving over treaty-negotiating authority to a
ing up their traditional fishing practices. So specially qualified group of civilian and military
Governor Stevens strategically located the reserva- leaders. Its charge was to minimize the causes for
tions so as to avoid non-Indian settlements while war among the Indians while securing the routes
protecting the tribes’ means of subsistence. Further- west and moving the Indians toward greater assimi-
more, he included provisions reserving to the tribes, lation. Typical of the treaties that emerged from that
on their ceded lands, “[t]he right of taking fish, at all process were those with the Sioux and the Navajo,
usual and accustomed grounds and stations . . . in both made in 1868. These treaties attempted to allay
common with all citizens of the Territory. . . .” In a the Indians’ concerns about loss of land and sover-
series of later cases, the federal courts eventually eignty by securing tracts to them for their “absolute
ruled that this provision guaranteed one-half the and undisturbed use and occupation” and positing
catch from these areas to the tribes, decisions that that no cessions of land shall be valid “unless exe-
provoked angry outcries from non-Indian commer- cuted and signed by at least three-fourths of all the
cial and sport fishers. adult male Indians occupying the same.” The
Notwithstanding the recognition of traditional United States also agreed to arrest and punish “bad
fishing practices in the Stevens treaties, most treaties men among the whites” who committed wrongs on
of the 1840s and 1850s, and even more so those of the the Indians and to compensate those Indians who
1860s, focused on transforming Indians into agricul- were thus injured. At the same time, the Indians
turalists. Some treaties, such as those with the agreed to turn over to the United States, for punish-
Mescalero and Jicarilla Apache in 1853, actually ment, any “bad men among the Indians” who com-
included agreements by the Indians to settle on the mitted wrongs against outsiders. Most of the provi-
lands allotted to them and to “cultivate the soil and sions in these treaties, however, were devoted to
raise flocks and herds for a subsistence.” However, pressing the Indians toward lives as farmers and
this plan was not always backed up by establish- ranchers. The United States obligated itself to build
ment of reservations with soil and water adequate schools, to provide agents and teachers who would
for successful farming. Non-Indian settlers were live on the reservation, and to allocate tracts for
reluctant to see rich agricultural lands in Indian farming, seed, and agricultural implements to any
ownership and pressed the United States to exclude tribal member so inclined. The Indians, in turn,
them from the reservations. agreed to compel their children up to the age of six-
Indian treaty making slowed somewhat during teen to attend school. For the Navajos in particular,
the Civil War. Yet during this time, a powerful a major inducement for signing the treaty was the
debate over the desirability and utility of Indian opportunity to return from exile to their ancestral
treaties emerged within the federal government, homeland in the Southwest.
reaching a crescendo in 1864. Military leaders such
as General John Pope wanted to employ the over-
whelming force of the United States to end the treaty The End of Treaty Making
system, stop the flow of annuity payments under Although non-Indian opposition to Indian treaties
earlier treaties, and manage the Indians regardless of had surfaced during the Jackson administration,
their consent. The commissioner of Indian affairs, fueled by the views of Jackson himself, antagonism
William Dole, strongly resisted this approach, argu- toward such instruments became more pointed and
ing instead that the United States should continue its widespread at the end of the 1860s. The reasons
long-standing policy of using force only to the point were manifold. Some pointed to the inability of the
where the Indians could be induced to agree to U.S. military, stretched thin across the growing
treaty terms. Otherwise, the Indians would more nation, to make good on American promises to

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26 Governments and Treaty Making

protect boundary lines established in the treaties. References and Further Reading
As Episcopal bishop Henry Whipple wrote, “We Andrew, John A., III. 1992. From Revivals to Removal:
send ambassadors to make a treaty as with our Jeremiah Evarts, the Cherokee Nation, and the Search
for the Soul of America. Athens: University of
equals, knowing that every provision of that treaty
Georgia Press.
will be our own, [and] that those with whom we Banner, Stuart. 2005. How the Indians Lost Their Land:
make it cannot compel us to observe it. . . .” Many Law and Power on the Frontier. Cambridge, MA:
spokesmen of the time contended that it was a Harvard University Press.
farce to treat with Indians as if they were separate Jones, Dorothy. 1982. License for Empire: Colonialism by
and sovereign nations when they had no effective Treaty in Early America. Chicago: University of
governments and laws of their own. Although Chicago Press.
Kades, Eric. 2000. “The Dark Side of Efficiency:
such statements ignored the traditions of dispute
Johnson v. M’Intosh and the Expropriation of
resolution and social control that remained alive American Indian Lands,” 148 University of
within tribal communities, they also reflected the Pennsylvania Law Review 1065–1190.
deterioration of many such institutions under the Kappler, Charles J., ed. 1904. Indian Affairs: Laws and
impact of non-Indian settlement and Indian Treaties, vol. 2, Treaties. Washington, DC:
administration. Government Printing Office.
Ultimately, in 1871, the Congress abolished Kappler, Charles J., ed. 1975. Indian Treaties
future treaty making with the Indians. Among 1778–1883, 3rd ed. New York: Interland.
Newton, Nell Jessup, ed. 2005. Cohen’s Handbook of
other things, the House of Representatives had
Federal Indian Law. Newark, NJ: LexisNexis.
become frustrated over the fact that it was required Prucha, Francis Paul. 1994. American Indian Treaties:
to appropriate funds to fulfill treaty obligations but The History of a Political Anomaly. Berkeley:
did not have a voice in the decision to ratify those University of California Press.
treaties. Although the United States continued to Richter, Daniel K. 2001. Facing East from Indian
make agreements with the Indian nations and to Country: A Native History of Early America.
enshrine those agreements in legislation, the era of Cambridge, MA: Harvard University Press.
Satz, Ronald. 1975. American Indian Policy in the
treaty making had come to an end because treaties
Jacksonian Era. Lincoln: University of Nebraska
no longer served federal policy objectives. The Press.
United States had already acquired vast quantities Trennert, Robert A., Jr. 1975. Alternative to Extinction:
of Indian land and didn’t need treaties to finish Federal Indian Policy and the Beginnings of the
the job. Reservation System—1846–51. Philadelphia:
Carole Goldberg Temple University Press.

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Legislation, Treaty Substitutes,
and Indian Treaties

L
egislation affecting the indigenous tribes and But general Indian legislation was even more pro-

L
peoples in the United States included laws foundly influenced by the general trend of federal
that stated general policy directions, laws legislation. This is because an objective of Congress
that established and regulated the burgeoning in framing Indian legislation has been to influence
Indian Service, laws that authorized appropria- the direction of development of Indian communi-
tions, and laws that appropriated funds to carry out ties. The desired direction has been influenced by
Congress’s intent. All these laws were significant developments in American society and by prevail-
for the dealings of the United States with Indian ing assumptions about the likely directions for
tribes and peoples. During the treaty period, the development. Indian legislation followed trends in
laws provided a framework for the U.S. representa- the society, including general laws enacted by Con-
tives who met with the Indian tribes to negotiate gress to apply to all citizens. In America, Harold
treaties. Legislation delineated Indian policy, pro- Hyman has suggested that five laws contributed to
vided the framework for Indian treaties, and appro- a singularly American development of public
priated funds to carry out federal policy. Indian leg- policy: the Land Ordinance of 1785 and the North-
islation expressed Congress’s sense of the nature of west Ordinance of 1787, enacted by the Continental
contemporary American society, and the progres- Congress before the ratification of the Constitution;
sion of Indian legislation reflected the progression the Homestead and Land Grant College Acts of
of American social organization more broadly con- 1862, enacted by the first Civil War Congress; and
sidered. After Congress ended treaty making with the GI Bill of 1944, enacted in anticipation of the end
the Indian tribes in 1871, legislation provided the of World War II (Hyman 1986). Each of these laws
framework for the negotiation of the agreements was important in shaping Indian policy, although
that substituted for treaties in the late nineteenth none was specifically directed toward Native Amer-
century. These treaty substitutes were subsequently ican people.
ratified as statutes rather than as treaties; both
houses of Congress voted on the agreements, not
only the Senate as is the case for treaties. During the Trade and Intercourse
twentieth century, intergovernmental agreements Prior to American independence, colonial legisla-
between the tribes and the United States and indi- tures and royal provincial governors dealt with
vidual states again became an important way of tribes within the confines of their territories. After
regulating the relations between the United States the French and Indian War, the Crown preempted
and the Indian tribes. management of relations with the tribes of the Ohio
In the United States, Indian legislation has valley. Article IX of the Articles of Confederation,
included congressional statements of general Indian adopted in 1778 during the American Revolution,
policy, laws creating and regulating the Indian Ser- gave the Continental Congress the power to deal
vice, laws and treaties dealing with specific tribes or with Indian tribes located in the West on a govern-
groups of tribes, and appropriations acts that pro- ment-to-government basis; the states were in charge
vided the funds to carry out Indian policy. Most of relations with local tribes.
studies of federal Indian policy have concerned The Land Ordinance of 1785 provided for a
statements of general Indian policy, legislation rectangular survey of the area west of the
directed at specific groups of Indians, and the imple- Appalachian Mountains, with one 640-acre section
mentation of these statutes. The laws creating and in each township to be devoted to support of the
regulating the agencies responsible for carrying out public schools. The Northwest Ordinance of 1787
Indian affairs, and appropriation acts, although less specified the methods of sale and settlement of the
studied, have been important in determining the surveyed lands. By providing for the organization
course of Indian affairs. of new states in the territory north and west of the
General Indian legislation at times shaped Ohio River, the ordinance contemplated the orga-
events in the field and at times responded to them. nization of the western territories on the model of

27
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28 Governments and Treaty Making

the eastern states. The ordinance promoted and sions for education and training in agriculture
accelerated the westward expansion of the United along with regulation of trade and commercial rela-
States. tions with whites.
The source of federal authority in Indian affairs
is the Constitution, which gives the Congress ple-
nary power in Indian affairs. The commerce clause Removal
(Article I, Section 8) provides that “Congress shall In 1800, the United States comprised sixteen states:
have the power . . . to regulate commerce with for- Vermont (admitted in 1791), Kentucky (admitted in
eign nations, and among the several states, and with 1792), and Tennessee (admitted in 1796), in addition
the Indian tribes.” The supremacy clause (Article to the original thirteen colonies. By 1830, an addi-
VI) provides that the “Constitution, and the laws of tional seven states had joined the union, including
the United States which shall be made in pursuance Louisiana (admitted in 1804) and Missouri (admitted
thereof; and all treaties made, or which shall be in 1821), the first states to be organized with territory
made, under the authority of the United States, shall west of the Mississippi River. In addition, by 1830
be the supreme law of the land.” Initially, as implied territorial governments had been organized for
in the commerce clause, the emphasis of congres- Michigan (in 1805), Arkansas (in 1819), and Florida
sional legislation was on regulating trade with the (in 1822). The population of the United States, enu-
Indian tribes. The Indian Trade and Intercourse merated at 5.3 million at the 1800 census, had grown
Acts, enacted between 1790 and 1834, provided for to 12.8 million by 1830. Growing population and the
the disposal of Indian lands and the regulation of organization of territorial and state governments in
Indian trade. the West and South put pressure on Indian people
The Indian Intercourse Acts went beyond the living east of the Mississippi River.
regulation of trade, however. Congress attempted Removal, the forced or voluntary relocation of
to regulate the legal relations between Indians and Indians from tribal lands occupied at contact to
whites and, most significantly, to promote the “civi- new lands in the West, began before Congress
lization” or acculturation of the Indians by provid- enacted the Indian Removal Act of 1830 (4 Stat.
ing material assistance and instruction in agricul- 411). Sometimes removal was voluntary, as tribes
ture. Perhaps necessary in an era when the United moved west to avoid European Americans or in
States contended with such European powers as search of increased opportunity. But often removal
Great Britain, Spain, and France for domination of was coerced, as whites harassed Indians and as
the North American continent, the Indian Inter- many favored removal because they believed that
course Acts were designed to insure adherence to the isolation of Indians from whites would promote
United States hegemony in North America on the acculturation to European American culture, or
part of the Indian tribes. The conclusion of the War “civilization.”
of 1812 served to secure the northern frontier of the The Indian Removal Act envisioned the
United States. Although the war did not result in exchange of Indian lands east of the Mississippi
American expansion to the north as some Ameri- River for new lands to the west. Eastern Indians
cans had hoped it would, competition with Euro- were to be resettled at the western frontier of white
pean powers for domination of the North American settlement. The act resulted in the negotiation of
continent diminished. The Indian Civilization Fund removal treaties with most of the eastern tribes and
Act of 1819 (3 Stat. 516) portended future develop- forced and voluntary relocations to “Indian coun-
ments in Indian affairs. The act, which remained in try” west of the Mississippi River during the 1830s
force until 1873, authorized annual appropriations and 1840s. Some foresaw the development of a
to the Civilization Fund, from which “benevolent “permanent Indian frontier” to the west of Mis-
societies,” for the most part Protestant missions to souri and Arkansas. However, the migration of
the Indians, received funds to acculturate Native U.S. citizens to northern Mexico, followed by the
Americans by instructing Indian adults in the Euro- establishment of the Texas Republic (1836) and the
pean American style of agriculture and Indian chil- Mexican War (1846–1848), together with the resolu-
dren in reading, writing, and arithmetic. Many of tion of the “Oregon Question” (1846), stimulated
the treaties negotiated by the United States with the westward expansion by white Americans and lim-
Indian tribes during this period included provi- ited the extent of Indian country to present-day

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Legislation, Treaty Substitutes, and Indian Treaties 29

Oklahoma and the Dakotas. Only isolated reserva- for more liberal land measures to facilitate westward
tions remained in Kansas and Nebraska as a result expansion by whites.
of a second round of removals in the 1850s. The early reservation system depended upon
the army to enforce compliance with the new bound-
aries and prevent armed conflict between tribes and
Concentration between Indians and whites. It also required an effi-
During the 1840s, the United States acquired a vast cient administration of the Indian Office, which had
inland empire. The acquisition of territory in the the responsibility of administering the reservations
Northwest following settlement of the Oregon Ques- and, increasingly, of providing food rations to substi-
tion (1846) and in the Southwest following the tute for hunting grounds given up by the tribes. The
annexation of Texas (1845), as well as the American Indian Office’s responsibilities increased as a result
victory in the Mexican War (1848), provided the of the many treaties negotiated during the 1850s.
United States, at the beginning of the 1850s, with an However, little improvement in Indian Office
expanded western empire. A large number of Indi- administration followed the decade’s rash of treaty
ans, who were increasingly likely to conflict with making. The coming of the Civil War exacerbated
whites, lived in the newly acquired territories. But administrative problems. Although the pace of white
Congress contemplated a civilian administration of westward movement hardly slowed, the army with-
Indian affairs as part of its regulation of the new drew troops from frontier areas to fight the Confed-
interior regions of the continent. When Congress cre- eracy, and Congress and the president devoted pri-
ated a “Home Department,” the Department of the mary attention to the war rather than to Indian
Interior, in 1849, it transferred Indian affairs to the administration.
new department, along with the General Land Four laws enacted in 1862 by the first Civil War
Office, the Patent Office, and the Pension Office (“An Congress set the stage for the development of the
Act to Establish the Home Department,” 9 Stat. 395). West and influenced subsequent federal Indian leg-
The Treaty of Guadalupe Hidalgo (1848) ended islation. The Homestead Law of 1862 (12 Stat. 392)
the war with Mexico. Mexico ceded a significant provided for the distribution of the public lands, in
amount of land to the United States, amounting to quarter-section parcels of 160 acres each upon pay-
the northern third of the nation. Article IX of the ment of a nominal fee, to settlers who would agree
treaty provided that citizens of Mexico residing in to improve the land and live on it for five years. The
the ceded territory would become citizens of the size of the homesteads, larger than the minimum
United States. This provision affected the Pueblo required for subsistence farming, signaled Con-
Indians of New Mexico, who had been recognized as gress’s intention that the West would be settled by
citizens of Mexico. The treaty provided the United entrepreneurial farmers, who would raise cash
States with a vast inland empire and stimulated the crops. The Morrill or Land Grant College Act (12
continued development of the West. Stat. 503) provided for education in the “agricultural
Prior to the Civil War, the objectives of removal and mechanic arts” to the children of homesteaders.
of Indians from the path of white settlement and The Pacific Railroad Act (12 Stat. 489) would pro-
concentration of the tribes in isolated areas guided vide a means to transport goods to market, whereas
U.S. Indian policy. In the 1850s, the concentration of the Department of Agriculture Act (12 Stat. 387) pro-
Indians on reservations (limited geographic territo- vided for the development of a research agency that
ries reserved for Indian tribes) replaced the old was to investigate the best methods of agricultural
objective of simple removal. On the reservations, production. When the Pacific Railroad was com-
Indians would be protected from whites and helped pleted in 1869, thereby increasing traffic between
by Indian agents to adapt to white civilization. Thus, the East and the West, pressure on Indian lands
for example, the Treaty of Fort Laramie of 1851 (11 intensified.
Stat. 749) provided for a reservation for the western After the Union victory in the Civil War (1865),
Sioux, and the treaty of 1854 with the Chippewa (10 the United States established a new federal agency,
Stat. 1109) reserved lands in northern Wisconsin and the Freedmen’s Bureau, to provide limited support
Minnesota for the Ojibwe. These and other treaties to African American former slaves who had been
freed land for settlement by white Americans even freed as a result of the war (“An Act to Establish a
as politicians of the new Republican Party pressed Bureau for the Relief of Freedom and Refugees,”

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30 Governments and Treaty Making

1865, 13 Stat. 507). These efforts were supported by inspection to oversee civilian administration. Later
missionary associations, including several that were in 1867, reporting to the Senate on “Indian hostilities
also involved in missions to the Indians supported on the frontier,” Commissioner of Indian Affairs
by the Civilization Fund. In the Indian Territory, Nathaniel Taylor recommended an intensified pro-
tribes that had supported the Confederacy were gram of tribal consolidation on reservations. Warlike
forced to sign Reconstruction treaties. The treaties tribes would be confined on large reservations from
with the Cherokee, Choctaw, Chickasaw, Creek, and which all whites except government employees
Seminole tribes (1866) freed the slaves held by those would be excluded, and an intensive acculturation
tribes, granted freedmen tribal membership, and program would be attempted.
subjugated the tribes to authority of the federal gov- Congress created the Indian Peace Commis-
ernment. The Cherokee Reconstruction Treaty of sion, headed by Taylor, in 1867 (16 Stat. 319). The
1866 (14 Stat. 799), for example, in Article IX declared commission negotiated with many of the western
that Cherokee freedmen and “all free colored per- tribes treaties that embodied the consolidation doc-
sons who were in the country at the commencement trine. A clear line should be drawn between civil
of the rebellion . . . shall have all the rights of native and military responsibilities, the commission recom-
Cherokees.” mended. Opposed to transferring Indian affairs
The end of the Civil War increased the pace of from the Interior Department to the War Depart-
Indian removals from the states of Kansas and ment, the commission recommended a revision of
Nebraska and from the western Great Plains. In the the laws regulating intercourse with the Indians and
decade and a half following the end of the Civil War, administrative reforms to ensure “competent and
the Indian Office removed a large number of tribes faithful” personnel.
to Indian Territory, including such plains tribes as The recommendations of the Indian Peace Com-
the Kiowa, the Comanche, the Cheyenne, and the mission, together with the ongoing processes of
Arapahoe, and tribes formerly settled on reserva- removal and concentration, provided the Grant
tions in Kansas and Nebraska, including the Sac and administration, which took office in 1869, with its
the Fox, the Potawatomi, the Wichita, the Osage, the Indian reform policy. Hailed by contemporaries as a
Pawnee, the Iowa, and the Otoe. new departure in Indian affairs, the Peace Policy, as
Postwar treaties with noncombatant tribes the Grant reforms were known, attempted to
reflected renewed federal power. The Navajo treaty improve administration rather than to reformulate
of 1868 (15 Stat. 667) permitted the Navajo, who had the goals of federal activity. Two major elements of
been removed from their homeland to eastern New the Grant administration’s program, church nomina-
Mexico in 1864, to return to familiar territory to the tion of Indian Service officials and the creation of the
west but within defined reservation boundaries. The Board of Indian Commissioners, were administra-
treaty also provided for the distribution of land to tive changes. The third element was expressed as
individuals “wishing to commence farming” (Article “Peace on the reservations, war off.” Indians remain-
V), compulsory education for Navajo children (Arti- ing on the reservations were to be subject to a purely
cle VI), and the construction of railroads across the civil administration; those leaving without permis-
new reservation (Article IX). sion were assumed to be at war with the United
In 1865, Congress created a joint special com- States and were to be subject to military discipline.
mittee “to conduct an inquiry into the condition of Congress created the Board of Indian Commis-
the Indian tribes and their treatment by the civil and sioners (BIC) in 1869 (16 Stat. 40). Similar to the
military authorities” (13 Stat. 572). The Doolittle boards of inspection called for by the Doolittle Com-
Committee, so named after its chairman, Senator mission, the BIC was no doubt modeled on the state
J. R. Doolittle of Wisconsin, was a congressional boards of charities created by a number of states,
response to the Indian wars and the political turmoil beginning with Massachusetts in 1863. Like the state
resulting from them. The committee found that the boards of charities, the BIC was an unpaid advisory
Indians were decreasing in population due to dis- body that visited Indian reservations, compiled sta-
ease, wars, and loss of hunting grounds; it recom- tistics, and made recommendations on Indian
mended against the transfer of the Indian Office to administration. BIC members wanted to abolish
the War Department, a solution to the agency’s reservations, the Indian Service, and tribalism. The
administrative problems favored by some. Instead, Dawes Act of 1887 and subsequent Indian legislation
the committee advocated the creation of boards of to World War I reflected this point of view.

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Legislation, Treaty Substitutes, and Indian Treaties 31

In a provision of the Indian Appropriations Act When tribes such as the Ponca resisted removal, they
of 1871 (16 Stat. 566), Congress ended the treaty rela- found an increasingly sympathetic audience in white
tionship with the tribes. Although the precipitating reform groups.
cause was the unwillingness of the House to be left After the abandonment of removal as a policy,
out of the process of treaty making, terminating the diminutions in the Indian land base resulted from
treaty relationship was consistent with the spirit of such factors as the discovery of mineral resources
the reservation policy, in which the domination of on reservations and from the early experiments in
the United States was emphasized. The ending of the allotment, in which surplus land remaining after
treaty relationship symbolized the federal govern- each Indian had received an allotment of land was
ment’s objective of breaking up the tribal relation- opened to settlement by whites. The discovery of
ship and individualizing the Indians. Eli Parker, gold in the Black Hills of Dakota Territory resulted
Grant’s first commissioner of Indian affairs, had ear- in the Sioux Agreement of 1876, which removed the
lier requested an end to the “fiction” of treating the hills from the Great Sioux Reservation, opening
tribes as independent nations in his annual report them to white settlement and exploitation. Similarly,
for 1869. the discovery of gold and silver on the Ute Reserva-
As was true for all nineteenth-century social tion in 1879, combined with an uprising against
policy in the United States, work was favored over their agent, resulted in the removal of the Ute from
idleness. Congress viewed Indian labor as an essen- their Colorado home. Although some reformers
tial part of the process of Indian “civilization.” In protested the Ute removals, they ultimately acqui-
1875, in Section 3 of the Indian Appropriations Act, esced. Albert B. Meacham, a prominent Indian
Congress attempted to make Indian labor a require- reformer, served on the Ute Commission, which
ment for the receipt of rations. The act provided that supervised the removal. White reformers supported
land reduction schemes in part because they wanted
[f]or the purpose of inducing Indians to labor Indians to adopt land use patterns similar to those
and become self-supporting . . . the [Indian] of European Americans. In addition, white pres-
agent shall require all able-bodied male Indians sures on Indian lands were so great that reformers
to perform service upon the reservation and the believed that the Indians “would have to give up
allowances provided for such Indians shall be most of their land to retain title to any” (Hagan
distributed to them only upon condition of the 1976, 165).
performance of such labor. (18 Stat. 420) If a tribe held good farmland, white pressures
for removal led reformers to advocate allotment
Criminal jurisdiction remained an area of tribal even where mineral resources were not discovered.
autonomy. In Ex Parte Crow Dog (1883), the Supreme They viewed allotment as doubly beneficial. The
Court found that Indian tribes retained criminal experience of property ownership would encourage
jurisdiction over their members. In response, in a civilization and acquisition by the Indians of the
section of the Indian Appropriations Act of 1885 habits of hard work, thrift, and acquisitiveness,
known as the Major Crimes Act (23 Stat. 385), Con- which were presumed to characterize the white pop-
gress placed Indians accused of committing the ulation at its best. In addition, by providing protec-
crimes of “murder, manslaughter, rape, assault with tions for the Indian title, commonly a prohibition
intent to kill, arson, burglary, and larceny” under the against alienation for a twenty-five-year period,
jurisdiction of the United States, thus overriding allotment would forestall efforts at removal and
tribal or other Indian authority. enable the Indians to retain at least a portion of their
homeland.
On the reservations of central and western
Assimilation and Allotment Indian Territory, which were better suited to cattle
By the early 1880s, the concentration policy had to be grazing than to cultivation, a different pattern of
abandoned as unworkable. There were fewer truly white intrusion developed. The contractors who
isolated regions to which Indians could be removed. supplied the agencies with beef allowed the issue
Further, the results of removals, particularly of herds to graze on Indian lands. Texas cattlemen who
Northern Plains tribes to the Indian Territory, were began driving their herds north to Dodge City,
unacceptable. Unaccustomed to the climate, Indians Kansas, in the 1870s similarly exploited reserva-
died at an increasing rate on the new reservations. tion grasslands. In the late 1870s, agents at the

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32 Governments and Treaty Making

Cheyenne, Arapahoe, and Kiowa-Comanche Reser- The General Allotment Act of 1887 (24 Stat. 388),
vations began to charge ranchers grazing fees, using also known as the Dawes Act after its sponsor, Sena-
the proceeds to supplement meager congressional tor Henry Dawes of Massachusetts, provided for the
appropriations for supplying the Indians with division of reservation lands, at the discretion of the
rations. Although the grazing fees were of doubtful president, into allotments, which became the prop-
legality, sporadic attempts by Washington officials erty of individual Indians. Each allotment was a
to regulate their collection were ineffective until quarter section (160 acres) in area. Upon allotment,
Congress legalized leasing allotments held by old or the Indian became a citizen. The title to the allotment
disabled Indians in 1891 (26 Stat. 794). was held in trust by the United States for twenty-five
Allotment, the division of Indian lands held by years. At the end of this period, the allottee received
a tribe in common into individually owned tracts, a fee simple patent to his allotment. Henceforth, he
had a long history. The allotment of Indian lands or she would enjoy full control of the allotted land,
was practiced as early as the seventeenth century in which became subject to property taxes. “Surplus”
the American colonies. Before the Civil War, reserva- lands, those remaining after all Indians on a reserva-
tions in Alabama and Mississippi were allotted as a tion had received their allotments, were to be sold by
means of facilitating the sale of Indian lands to the United States in units not to exceed 160 acres.
whites. After the war, the allotment of Indian reser- The objective of the act was the integration of the
vations was employed as an expedient to prevent Indians into American society as independent farm-
the removal of tribes to more remote areas, by ers. Not coincidentally, through the surplus land
demonstrating the willingness of tribal members to sales and through an 1891 amendment (26 Stat. 794)
become civilized. Thus, the Santee Sioux of permitting the leasing by non-Indians of allotments
Nebraska, threatened with the loss of their reserva- held by elderly and disabled Indians, the allotment
tion on the Niobrara River and removal to Indian policy facilitated the penetration of the remaining
Territory, petitioned the commissioner of Indian Indian lands by white ranchers and farmers. In gen-
affairs in 1869 to allot their reservation so that they eral, the act, like the Homestead Act of 1862 that it
might hold secure tenure on it. Similarly, when the resembled, reflected a land ideology that favored
Omaha tribe of Nebraska was threatened with small landholdings and opposed in principle the
removal to Indian Territory in 1882, Alice C. Fletcher, ownership of units of land too large to be worked by
the pioneer American ethnologist, proposed allot- an individual entrepreneur.
ment as an alternative. Miss Fletcher was visiting the The Dawes Act made special provisions for rail-
Omaha. She went to Washington to argue against the road rights-of-way across reservations and for modi-
tribe’s removal, carrying a petition requesting allot- fications in areas suitable only for grazing. The act
ment. Successful in her mission, Miss Fletcher probably accelerated the process of allotment, even
returned to supervise the allotment of the reserva- though in many cases Congress enacted special legis-
tion. After the passage of the General Allotment Act lation based on agreements with the affected tribes.
of 1887, she was to supervise the allotment of several For example, the Great Sioux Agreement of 1889 (25
other plains reservations. Stat. 888), which created the Sioux Reservations of
The frequency of special allotment acts applied North and South Dakota, provided for their allot-
to specific tribes both before and after the passage of ments. The Five Civilized Tribes of Indian Territory
the General Allotment Act led historian William T. had been exempt from the provisions of the General
Hagan to suggest that the course of policy develop- Allotment Act. In 1893, however, Congress created a
ment was little affected by the act. In his view, reser- commission to negotiate the dissolution of the tribal
vations would have been allotted with or without a governments and the allotment of tribal lands in “the
general allotment law. Most of the treaties negotiated Cherokee Nation, the Choctaw Nation, the Chicka-
in the 1860s included provisions for eventual allot- saw Nation, the Muscogee (or Creek) Nation, [and]
ment; similarly, Congress in 1875 provided that Indi- the Seminole Nation” (27 Stat. 557). The retired Sena-
ans severing their relations to their tribes could tor Henry Dawes, the author of the General Allot-
homestead on public lands under the provisions of ment Act, served as the commission’s first chairper-
the Homestead Law (18 Stat. 402). The possession of son. The commission supervised the enrollment of
private property, especially the separate farm, came members of the five tribes and attempted to negotiate
to be viewed as the key to Indian civilization and to allotment. When the tribes resisted, Congress enacted
the maintenance of an Indian land base. the Curtis Act of 1898 (30 Stat. 498). The Curtis Act

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Legislation, Treaty Substitutes, and Indian Treaties 33

authorized the allotment of tribal lands, dissolved the and 1990s to promote federal government use of
tribal governments, and paved the way for the even- Indian energy sources and to allow Indian firms to
tual admission of Oklahoma as a state. participate in the Department of Defense’s Mentor-
The Dawes Act made no provision for the leas- Protégé Program (P. L. 100–581, 1988, 102 Stat. 2940;
ing of allotments. When Congress approved the leas- P. L. 103–345, 1994, 108 Stat. 4572). The Snyder Act
ing of allotments made to old people and the dis- of 1921 (42 Stat. 208) provided explicit authorization
abled in 1891 (26 Stat. 791), it also modified the size for federal expenditures “for the benefit, care, and
of allotments, providing for the allotment of one- assistance of the Indians throughout the United
eighth of a section (eighty acres) to each eligible indi- States,” including education, health care, industrial
vidual and for double allotments of lands suited development, the maintenance of water sources,
only for grazing. A series of additional congressional and general expenses of government. The act repre-
actions in the 1890s extended the scope of leasing. In sented a change in government policy because it
1894, Congress authorized the leasing of unsold sur- departed from reliance on treaty provisions for the
plus lands for farming as well as for grazing pur- support of American Indians and represented the
poses (28 Stat. 305). Sections 13 and 23 of the Curtis first recognition of a general federal obligation to
Act of 1898 authorized the leasing of Indian Territory Indian people.
allotments and provided for mineral leases as well Another post–World War I statute, the Indian
(30 Stat. 495). Congress broadened the criteria for Citizenship Act of 1924 (43 Stat. 253) made all Indi-
permitting the leasing of allotments again in 1900, ans born in U.S. territory citizens of the United
providing “inability,” in addition to age and disabil- States. Citizenship as a status had long represented
ity, as a ground for leasing (31 Stat. 229). The leasing the goal of assimilationist white Indian reformers.
provisions, combined with the surplus land provi- The Indian Citizenship Act represented the high
sions of the Dawes Act, permitted extensive white point of assimilation, as it envisioned the integration
intrusion into what had been reservation lands. of Indian people into American society as individu-
The Burke Act of 1906 modified the citizenship als. Later Indian legislation would move away from
provisions of the Dawes Act by deferring citizenship the assimilationist goal and strengthen tribes.
until expiration of the trust period (34 Stat. 182). Forty years of experience with the Dawes Act
However, the secretary of the interior could autho- led to the recognition that it had failed to deal ade-
rize the issuance of a fee simple patent to allottees he quately with the “Indian problem.” By the late 1920s,
found to be competent before the end of the twenty- American Indians had not taken their places along-
five-year trust period. For allottees found incompe- side white American farmers as independent entre-
tent at the end of the twenty-five-year trust period, preneurs. Rather, the allotment policy had led to an
the trust period could be extended upon the order of even more drastic diminution in the Indian land
the secretary. The immediate effect of the Burke Act, base than had been envisioned by its framers.
however, was probably to hasten the end of the trust Unable to secure credit and inexperienced in farm-
period for many allottees. Competency commis- ing, holding allotments in many cases too small to be
sions, particularly active during the Woodrow Wil- economically viable, allottees sold or leased their
son administration (1913–1921), were active in end- holdings or lost their lands through nonpayment of
ing the trust period ahead of schedule. state and local taxes. Allotments that remained in
trust status became fragmented as the original allot-
tees died and interest in allotments was divided
A Transitional Period among an increasing number of heirs.
The Buy Indian Act, Section 23 of the Act of June 23, In 1926, President Calvin Coolidge’s secretary of
1910 (36 Stat. 861), provided that the Indian Service the interior, Hubert Work, asked the Institute for
should buy Indian products and contract with Government Research (soon to become the Brookings
Indian laborers in preference to non-Indian sources. Institution) to conduct a survey of Indian affairs with
This Progressive Era legislation was intended to recommendations for administrative action. The
promote the integration of American Indians into report of the institute, known as the Meriam Report
the economy of the United States and would (after Lewis Meriam, the technical director of the sur-
become important a half century later as Indian vey), was published in 1928. Together with Laurence
tribes attempted to promote economic develop- F. Schmeckebier’s The Office of Indian Affairs, pub-
ment. Congress amended the act during the 1980s lished in 1927 as Number 48 of the institute’s Service

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34 Governments and Treaty Making

Monographs of the United States Government, the and to provide for the purchase of lands to be
Meriam Report was the most comprehensive survey added to the reservations. A credit fund enabled the
to date of the Indian programs of the federal tribes to get capital to finance economic develop-
government. The report blamed the unanticipated ment projects. Thus, tribes were to be organized as
consequences of the allotment policy on the govern- business corporations, even as the national econ-
ment’s insistence on allotting land to tribes that were omy was to be organized industry by industry.
unprepared for the individual ownership of property.
It recommended that the wishes of the Indians
involved be taken into account prior to allotment. The Termination Movement
The report concluded that the goal of work with the The Servicemen’s Readjustment Act, or GI Bill, of
Indians should be integration into white society if 1944 (58 Stat. 284), provided educational benefits for
they desired it. But if they did not, the goal should be a generation of World War II veterans. The law revo-
to enable the Indians “to live in the presence of [the lutionized higher education in the United States. The
prevailing] civilization at least in accordance with a GI Bill also provided health care for veterans and
minimum standard of health and decency.” gave them access to credit for homeownership and
business development. The law established the basis
for a postwar middle class and an increasingly sub-
The Indian New Deal urban society. In Indian affairs, Congress followed a
Early New Deal legislation, a response to the stresses similar course, emphasizing investment in individu-
of the Great Depression, provided for the corporate als and their economic and social development. Dur-
organization of the U.S. economy. The National ing World War II, Congress reduced funding for the
Industrial Recovery Act of 1933 (48 Stat. 195) created Indian Service’s community-based activities and
the National Recovery Administration (NRA) and increased funding for health and education services
provided for the organization and regulation of the directed toward individual Indians. The Indian Ser-
economy by industry councils representing owners, vice promoted Indian migration to urban areas to
workers, and the government. Until the Supreme work in defense plants.
Court ruled the act unconstitutional in 1935, the In 1946, in order to “streamline” administration,
NRA represented the Roosevelt administration’s Congress authorized substantial delegation of
major effort to promote economic recovery. authority from the secretary of the interior to the
Two days after the enactment of the National commissioner of Indian affairs and from the com-
Industrial Recovery Act, Congress passed the missioner to subordinate officials in the field (60 Stat.
Indian Reorganization Act (IRA; 48 Stat. 984). The 939). In 1947, an administrative reorganization
Wheeler-Howard Act, as the IRA was known, resulted in the creation of five regional headquarters,
stopped further allotments of tribal land and or area offices, in Minneapolis, Billings, Portland,
enabled tribes to organize themselves as govern- Phoenix, and Oklahoma City. Also in 1946, Congress
ments and as corporations for purposes of eco- created the Indian Claims Commission Act (ICC; 60
nomic development. The act had been drafted in Stat. 1049). The ICC was established to hear claims
the Department of the Interior by John Collier, against the United States arising from treaty dis-
Franklin D. Roosevelt’s commissioner of Indian putes, thereby streamlining the claims process. The
affairs, and his associates. Collier wanted to restore Indian Office was officially designated the Bureau of
and preserve Indian communal life and Indian cul- Indian Affairs (BIA) in 1947.
ture while improving the economic status of the Following the conclusion of World War II, a
Indians. He saw the act as a means of doing so. movement for the termination of federal responsibil-
Corporate development would provide an eco- ity to the Indians and for the transfer to the states of
nomic basis for Indian life, while tribal govern- the federal government’s health, education, welfare,
ments would provide the basis for a separate politi- and law enforcement functions dominated Indian
cal order. As tribal governments and corporations affairs. The movement was supported by the Hoover
became viable, the Indian Office’s role would Commission on the reorganization of the federal
become consultative and advisory. Other provi- government in 1949, based on its rejection of the Col-
sions of the act enabled the secretary of the interior lier position of separate development of the tribes.
to restore unsold surplus lands to the tribes, to The Hoover Commission called for the integration of
extend the trust period of allotments indefinitely, the Indians into American life, transfer of the bureau

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Legislation, Treaty Substitutes, and Indian Treaties 35

to the proposed successor to the Federal Security Indian New Deal after World War II, the basic legis-
Agency, and the transfer, as rapidly as possible, of lation was not repealed, and the tribal governments
federal services to state auspices. continued to function. The new Democratic adminis-
In 1953, Congress endorsed the Hoover Com- tration of 1961 brought an end to the termination
mission’s program of federal disengagement and movement. Stewart Udall, secretary of the interior
Indian integration. The Termination Resolution, as under Presidents John Kennedy and Lyndon John-
House Concurrent Resolution No. 108 (67 Stat. B132) son, disavowed the policy in 1961. Presidents John-
was known, called for the termination of federal son and Nixon both explicitly rejected termination in
responsibility for American Indians as quickly as special Indian messages to Congress in 1968 and
possible. Congress terminated federal responsibility 1970. Ultimately, federal responsibility for the Amer-
for a number of tribes during the 1950s, notably the ican Indians would be reduced through the eco-
Klamath tribe of Oregon (P. L. 83–587, 1954, 68 Stat. nomic development of the tribes.
718), the Menominee tribe of Wisconsin (P. L. 83–399, The Economic Opportunity Act of 1964 (P. L.
1954, 68 Stat. 250), and the Paiute tribe of Utah (P. L. 88–452, 78 Stat. 508) strengthened the tribal govern-
83–762, 1954, 68 Stat. 1099). Other legislation pro- ments established under the Indian Reorganization
vided for the removal of restrictions on the sale of Act, as they designated themselves Community
alcoholic beverages to Indians (P. L. 83–277, 1954, 67 Action Agency (CAA) Boards. Consequently, the
Stat. 586), for the transfer of responsibility for Indian War on Poverty increased the power of the existing
health from the Bureau of Indian Affairs to the U.S. tribal governments on the reservations rather than
Public Health Service, and for a relocation program creating new power centers, as it often did in urban
to encourage Indian migration to urban areas. Public areas. Tribal governments began to administer a
Law 280 (67 Stat. 588), also passed in 1953, enabled wide variety of welfare and economic development
the states to extend law enforcement jurisdiction to programs. During the late 1960s, a number of Great
Indian reservations without consulting the tribes Society programs established “Indian desks.” Tribal
involved. All of these measures attempted to solve governments became increasingly sophisticated in
the “Indian problem” by promoting the integration shopping for federal agencies willing to finance pet
of the Indian into American society through the projects. The Catalog of Federal Domestic Assistance
removal of special services and special protections. Programs, similar in size and format to the catalogs of
The National Congress of American Indians, an the large mail-order houses, was a fixture in every
organization of tribal governments established tribal office library.
under the provisions of the Indian Reorganization Still, the federal programs of the 1960s failed to
Act, and some white-led reform groups opposed the improve the relative position of the American Indi-
termination movement of the 1950s. ans. By the end of the decade, they were still the
The Hoover Commission had recommended nation’s most deprived minority group, whether the
transferring services of the Bureau of Indian Affairs measure was nutritional level, educational accom-
to agencies that provided similar services to the gen- plishment, median income, or morbidity and mortal-
eral population. The Transfer Act of 1954 (P. L. 568, 68 ity rates. In part, the effects of the Economic Oppor-
Stat. 674) transferred Indian health services from the tunity Act on the tribes were deceptive. The act
Bureau of Indian Affairs to the Public Health Service provided the illusion of local control, while the effect
in the Department of Health, Education, and Welfare. of federal guidelines was to create a tribal bureau-
Legislators intended this and related acts to be a pre- cracy controlled in large part by the “memorandum
lude to the termination of special status and services writers” who occupied the Indian desks of the fed-
for Indians, but the results were quite different. The eral granting agencies. Guidelines also resulted in a
Public Health Service moved to improve the health uniformity of programs across the many supposedly
status of Indian people and during the 1960s com- locally controlled CAAs.
peted with the Bureau of Indian Affairs to provide an The African American civil rights movement of
increasing array of services to Indian reservations. the early 1960s had little effect on Indian people;
the nationalist movements of the latter part of the
decade, however, evoked a stronger response. This
Self-Determination was particularly true among the relocated Indians
Although the termination movement moved the fed- of the cities, who were increasingly critical of the
eral government away from the principles of the goal of assimilation, whether by termination or by

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36 Governments and Treaty Making

tribal economic development. They were also criti- Later congressional legislation emphasized eco-
cal of the tribal governments, which they viewed as nomic development, returning to the business orga-
corrupt political machines. On the Pine Ridge nization provisions of the Wheeler-Howard Act of
Reservation, by the early 1970s urban militants had 1933. The Indian Mineral Development Act of 1982
allied with conservative older Indians who had (P. L. 97–382, 96 Stat. 1940) authorized tribes to con-
opposed the Indian Reorganization Act in the mid- tract with energy companies and others to develop
1930s. They called for a return to the situation that the mineral resources on Indian reservations. In the
had prevailed before the passage of the Dawes Act. Indian Gaming Regulatory Act of 1988 (P. L. 104–330,
Then, they said, the government dealt with Indian 102 Stat. 2467), Congress attempted to strike a bal-
tribes as units without attempting to influence their ance between state and tribal interests. The act
internal affairs. Political power within the tribes reflected the growing importance of gambling as a
would be based on ascribed status: family ties, age source of tribal economic development. Congress
and wisdom, demonstrated leadership. recognized tribal interests in gaming but required
The Indian Civil Rights Act of 1968 (82 Stat. 77) tribes to negotiate with states before providing Class
extended the protections of the Bill of Rights to III gambling—that is, gaming that goes beyond tra-
American Indians by restricting tribal governments’ ditional tribal games and bingo. The law established
dealings with their citizens. The act prohibits tribal the National Indian Gaming Commission to oversee
governments from interfering with religious free- negotiations between tribes and states.
dom, freedom of speech, and freedom of the press. Paul H. Stuart
The statute provides most of the restrictions on gov-
ernment action included in the first ten amendments References and Further Reading
to the U.S. Constitution. As an exercise of Congress’s Commission on Organization of the Executive
plenary power in Indian affairs, this legislation pro- Branch of the Government. 1949. Indian Affairs:
A Report to the Congress. Washington, DC:
vides an exception to the general expansion of tribal
Government Printing Office.
powers after 1960. Commission on the Rights, Liberties, and
In 1973, Congress passed the Menominee Responsibilities of the American Indian. 1966.
Restoration Act (P. L. 93–197, 87 Stat. 770), reversing The Indian: America’s Unfinished Business.
the termination of the Menominee tribe nearly Norman: University of Oklahoma Press.
twenty years earlier. The next year, Congress created Institute for Government Research. 1928. The Problem
the American Indian Policy Review Commission of Indian Administration: Report of a Survey made
at the request of Honorable Hubert Work, Secretary
(P. L. 93–580, 88 Stat. 1910). The Indian Education
of the Interior, and submitted to him February 21,
Assistance and Self-Determination Act (P. L. 93–638, 1928. Baltimore: Johns Hopkins Press.
88 Stat. 2206), enacted in 1975, finally ushered in the Hagan, William T. 1961. American Indians, rev. ed.
era of self-determination that Presidents Lyndon Chicago: University of Chicago Press.
Johnson and Richard Nixon had called for. The law Hagan, William T. 1976. “The Reservation Policy: Too
made it possible for tribes to contract with federal Little and Too Late.” In Indian-White Relations: A
agencies to provide services to their members and to Persistent Paradox, ed. Jane F. Smith and Robert
subcontract with other entities to deliver those ser- M. Kvasnicka, 157–169. Washington, DC:
Howard University Press.
vices. The law encouraged devolution of implemen-
Hyman, Harold L. 1986. American Singularity: The
tation authority from the federal government to 1787 Northwest Ordinance, the 1862 Homestead
tribal governments and gradually resulted in an and Morrill Acts, and the 1944 G.I. Bill. Athens:
expansion of tribal government organizations. The University of Georgia Press.
final report of the American Indian Policy Review Joint Special Committee. 1867. “Condition of the
Commission, issued in 1977, supported the self- Indian Tribes,” U.S. Senate Reports, 39th
determination policy. Other laws enacted during the Congress, 2nd Session, No. 156, Serial 1279.
Kelly, Lawrence C. 1975. “The Indian Reorganization
decade also strengthened tribal governments—
Act: The Dream and the Reality,” Pacific
notably, the Indian Child Welfare Act of 1978 (P. L. Historical Review 44 (August): 291–312.
95–608, 92 Stat. 3069) gave tribal courts primary Prucha, Francis Paul. 1984. The Great Father: The United
jurisdiction in cases involving Indian children and States Government and the American Indians. 2 vols.
provided funding to tribes for child welfare services. Lincoln: University of Nebraska Press.

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Legislation, Treaty Substitutes, and Indian Treaties 37

Schmeckebier, Lawrence F. 1927. The Office of Indian Stuart, Paul. 1990. “Financing Self-Determination:
Affairs: Its History, Activities, and Organization. Federal Indian Expenditures, 1975–1988,”
Baltimore: Johns Hopkins Press. American Indian Culture and Research Journal
Stuart, Paul. 1977. “United States Indian Policy: From 14(2): 1–18.
the Dawes Act to the American Indian Policy
Review Commission,” Social Service Review
(September): 451–463.

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Relevant Court Cases Related to Treaties

T
T
reaty law is one of the major underpinnings of assessment that they were “a political anomaly”
federal Indian law. Throughout the history of (oddity) in the nation’s history because the docu-
the United States, courts have interpreted, mis- ments and the ties did not fit neatly into European
interpreted, dismissed, and denied the terms of treaty American historical categories (Prucha 1994, 1, 289).
articles signed with Indian tribes. Treaties have long- Native nations preceded the European American
standing implications for national and international presence; Indian tribes were neither foreign nations
relationships; their impacts sometimes have a wide nor domestic states but entities in between in their
reach. American Indian treaties with the U.S. govern- interaction with the federal government. The leading
ment are one of the major characteristics that make Indian scholar of the last century placed treaties at
the Indian experience unique for the American the very bedrock of the entire federal-Indian rela-
nation. Because indigenous nations met the earliest tionship (Deloria 1996, 970–971).
Europeans and subsequent immigrants, American The interpretation of treaty rights frequently
Indians have had a long and continuing relationship drives much contemporary litigation that focuses on
with both the European predecessors and the descen- Indian sovereignty and rights. Controversies often
dants of the American republic’s founders. Treaties focus on American Indian treaties and claims of the
with indigenous nations became a major vehicle for violation of treaty rights. Across the nation, local
Native land cessions for the later American republic. conflicts involved controversies over long-standing
For American Indians, land cessions at first treaty obligations toward descendants of the original
were viewed simply as a temporary accommodation signers of Indian treaties. American Indians continue
for guests. Natives approached bilateral agreements to raise treaty rights as the basis for their claims to
from a perspective radically different from that of hunt, to fish, or to regain lost territory, such as the
European Americans. How they concluded treaties Black Hills for the Sioux. American courts have rec-
had a bearing on their interpretation of treaty law. ognized the long-term implications of Indian treaties
Indigenous peoples strove to strike bargains for Native rights. Treaties created a trust relationship
between kinfolk. Outsiders could be turned into fic- with the U.S. government that is the heart of federal-
tive relatives through elaborate adoption and wel- Indian policy. Provisions of some treaties signed
coming rituals. Rituals involving the sacred pipe between the federal government and American Indi-
were called calumet ceremonies. There were numerous ans are still in effect. Other provisions sometimes are
tribal variations on the form of the rituals (Sabo revived in court opinions to have renewed impact
1992). Once converted into a kinship relationship, upon contemporary events. The recognition of his-
the parties to a sacred agreement shared mutual toric treaty rights to resources, lands, and position
obligations and responsibilities for reciprocity. Once within the national republic contributes to the rich
made brothers, kinfolk did not betray the fealty of a legacy that helps constitute Indian country. Indian
brother without the direst of consequences. That was treaties have an impact not only within the United
especially true when the supreme creative force of States but also internationally. During the colonial
the universe had sanctioned the agreement through period, tribes in the eastern and southwestern por-
the proper performance of ceremonies. tions of the United States concluded alliances with
Indigenous people and their nations did not fit European nations, and some claim a continuous rela-
easily or comfortably into normal political or legal tionship. Emigration, migratory wildlife, whaling,
arenas for the American republic’s leaders. Justices and more are affected. American Indian treaties
who dealt with the topic early in the history of the make up a significant part of the ongoing demands
United States referred to the legal situation as a from Native peoples for acknowledgement of their
peculiar relationship. The judiciary deemed the sovereignty and their rights.
entire relationship of tribes to the United States “an
anomalous one” (U.S. v. Kagama 1886, 381). One
scholar who devoted his career to an examination of Powers of Treaty Making
Indian policy issues in the United States summa- Courts point to the U.S. Constitution as the funda-
rized his research into Indian treaties with the mental source guiding the judiciary’s examination

39
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40 Governments and Treaty Making

and determination of the impact of treaties. Article sions. After the declaring of American independence
II, Section 2, clause 2 of the Constitution declares, in 1776, the rebellious colonies sought Indian allies,
“The President shall . . . have power, by and with the or at least Native neutrality, during the Revolution-
advice and consent of the Senate, to make treaties, ary War. Following the successful revolution, which
provided two-thirds of the Senators present concur. secured independence, the fledgling American gov-
. . .” In the Constitution, Article VI, Section 2 pro- ernment also entered into agreements with tribes to
vides that “[t]his Constitution, and the laws of the secure peace, to identify borders, and to make allies
United States which shall be made in pursuance for the postwar period.
thereof; and all treaties made, or which shall be Courts have interpreted treaties with Native
made, under the authority of the United States shall tribes in a variety of ways throughout U.S. history,
be the supreme Law of the land; and the Judges in but they have always recognized treaties as superior
every State shall be bound thereby, any thing in the to the law of any individual state. In 1905, the
Constitution or laws of any State to the contrary Supreme Court set out the historical fact of treaty
notwithstanding.” The United States dealt with making with tribes, acknowledging that an Indian
Indian tribes as “distinct, independent political com- treaty is “not a grant of rights to the Indians, but a
munities” (Worcester 1832, 559) through treaties. grant of rights from them—a reservation of those not
Chief Justice John Marshall and the Court, in the granted” (U.S. v. Winans 1905, 381). A treaty did not
famous Worcester decision of 1832, voided Georgia give rights to Indians; rather, through their treaty,
state laws impinging upon the Cherokee Nation Indians granted away rights they already had. Ide-
because the laws were repugnant to treaties, to the ally, treaties are agreements negotiated between
U.S. Constitution, and to the laws “giving effect to equals. Like the federal powers set forth in the Con-
the treaties” (ibid., 562). Still earlier, the same justice, stitution, Indian tribes possess inherent powers, not
in a majority opinion, referred to the phrase in the ceded through treaties, that are not articulated until
commerce clause of the Constitution. That clause needed. Tribes retain or reserve sovereign powers
gave Congress the power to “regulate commerce unless expressly granted away by treaty or expressly
with foreign nations, and among the several states, taken from the tribe through federal statute. Some-
and with the Indian tribes” (Article III, Section 8). time treaties simply acknowledged rights that Indi-
The decision found tribes to be neither foreign ans “from time immemorial . . . always had and
nations nor domestic states, deeming Indian tribes to enjoyed” (Makah Indian Tribe v. McCauly 1941, 78).
be “domestic dependent nations” with a relationship The Court has reasoned that a treaty between the
to the United States that “resembles that of a ward to negotiators for the United States and an Indian tribe
his guardian” (Cherokee Nation v. Georgia 1831, 17). is essentially a contract between two sovereign
Justice Smith Thompson’s noteworthy dissent in nations. The judiciary has acknowledged the varying
1832 favored Indian nation status in part based upon circumstances under which treaty negotiations have
the treaty interaction (ibid., 50). taken place through the nation’s history. Most often,
Scholars have argued that American Indian sov- agreements arose out of unequal relationships. Obvi-
ereign rights should be recognized in a new era as ously, treaties made under threat were inherently
reserved rights under the terms of treaties (or agree- unfair and one-sided. Sometimes, U.S. negotiators
ments), as well as under the Tenth Amendment of sidestepped American Indian opposition to the
the U.S. Constitution, which contains the wording terms they presented and simply affixed signatures
“All powers not granted in this Constitution shall be or Xs to the document or, in the case of the Kiowa in
reserved to the States, or to the people” (Wilkins and 1892, returned to the nation’s capital and added the
Lomawaima 2001, 120; Deloria 1996, 972). Tribes still marks to the end of the document (Clark 1999, 48). It
retain sovereignty and still exercise inherent rights of was a fraudulent tactic but an expedient one. At
self-government. Those powers have existed since other times, U.S. authorities reacted to Indian oppo-
time immemorial. Some tribal leaders seek renegoti- sition by passing laws seizing Indian territory, such
ated treaty terms, insisting on more inclusive advan- as Black Hills legislation in 1877 or allotment in sev-
tages, territorial acquisitions, and recognition of eralty acts. Over time, as the relative power position
expanded rights. between the United States and Indian nations
Colonies negotiated with tribes, and European changed, the U.S. government imposed terms on
nations concluded agreements with indigenous disparate groups that allegedly represented entire
nations, to secure amity, trade, allies, and land ces- Indian nations, and then the Senate quickly ratified

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Relevant Court Cases Related to Treaties 41

the “treaty” as if it had come from the wellspring of payment of annual annuities to Pawnee tribal mem-
the demands of a whole Native nation. bers, are still in effect. At other times, courts have
Around the time of the American Civil War, a recognized Indian treaty rights long after the origi-
growing clamor arose among government agents, nal historical circumstances had radically changed.
missionaries, and other leaders, calling for an end to Beginning in the late 1960s, federal courts upheld
treaty making with tribes. Part of the expressed con- the Northwest tribes’ treaty “right of taking fish” in
cern arose from ongoing conflicts between govern- the region (U.S. v. Washington 1975, 683). Other
ment agencies over which branch, military or civil- examples occurred in the 1980s and in 1999, when
ian, would control Indian affairs. Another reason the Supreme Court ruled that Chippewa Indian
related to U.S. insistence on reflecting the changed band members retained their rights for hunting,
situation between the national government and fishing, trapping, and gathering, both on and off
tribes. Pressure from business interests that believed their reservation (the latter are called usufructuary
they were hampered in their dealings with Native rights), that were guaranteed to them under their
peoples as a result of the constraints of treaties treaty (Lac Courte Oreilles v. Voigt 1983; Minnesota v.
added another excuse. Other people sought more Mille Lacs 1999, 176; Wilkinson 1991). From time to
Indian lands, believing treaties stood in their way. time, Congress also enacts legislation to implement
The clash between the houses of Congress over ulti- terms of past treaties. One example is the Pacific
mate control of Indian affairs, involving executive Salmon Treaty Act, passed in 1985 (P. L. 99–5, 99
branch privileges, helped determine the outcome. Stat. 7). The measure established a U.S.-Canadian
Congress responded to the call and in 1871 enacted commission that included Indian representation to
an amendment to an Indian appropriations bill that oversee the protection of tribal treaty international
halted treaty making with tribes (Act of 3 March fishing stocks. The commission tries to address prob-
1871, 16 Stat. 566, sect. 1). The act stated that treaties lems arising from the multinational impact of North
made prior to 1871 were not affected, that “. . . no Pacific fishing resource questions. Additional chal-
obligation of any treaty lawfully made and ratified lenges are posed by the enforcement of treaty terms
with any such Indian nation or tribe prior to March and congressional appropriation of funding to sup-
3, 1871, shall be hereby invalidated or impaired.” In port the implementation of treaty terms.
the future, the president could authorize executive
agreements with consenting tribes, agreements that
would be ratified by both houses of Congress The Canons of
(Prucha 1984, I, 527–533; Wunder 1985). Agreements Treaty Construction
that could be ratified by both houses of Congress Ambiguous Expressions Must Be
continued to be made until 1911. Thereafter, Con- Resolved in Favor of Indians
gress authorized numerous measures that directly The conditions under which two sides negotiated
dealt with Indian lands and rights, but the enact- treaties left much to be desired, as a result of power
ments were not officially termed treaties. Two exam- differentials, language and cultural barriers, and a
ples are the federal acknowledgement, in the con- host of other problems. Discerning what a figure in
temporary era, of the Mashantucket Pequot in their history thought or believed with certainty is next to
land claims settlement act in the state of Connecticut, impossible, given the lapse of time and the difficul-
and recognition of the Ysleta del Sur Pueblo (usually ties of documentation. Jurists have struggled
called the Tigua) within the state of Texas in 1988 through the years with the basic question of how to
(former, 25 U.S.C. § 1751, 1988; latter, 101 Stat. 666). interpret treaty language and how to reconcile
Although such measures are called land settlement treaty rights with congressional and court desires,
acts now, they are in reality agreements negotiated local and state demands, to end the terms of treaties.
with tribal governments, once termed Indian Courts established rules under which treaties could
treaties. Contemporary tribal compacts with state consistently be interpreted for a period of time. The
and local governments perform the same function as rules regarding treaties are called canons of construc-
historic bilateral treaties. tion (or guidelines). Judges have held that any sig-
Treaty terms varied widely in the length of time nificant ambiguities in interpretation of treaty rights
they ran and the effects they had. Courts sometimes must be resolved in the favor of Indians because of
have ruled that the terms of a particular article of a language barriers and as a result of cultural differ-
treaty no longer hold. Some treaty terms, such as the ences. When brothers erected fishwheels on the

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42 Governments and Treaty Making

Columbia River, relying on their state license to per- negotiations. The federal government often coerced
mit them to take a large amount of fish, Yakima tribe members into negotiating. “The Indian Nations
Indians objected because of the rapid depletion of did not seek out the United States and agree upon an
fish resources. The Indians insisted on recognition exchange of lands in an arm’s-length transaction.
of their treaty right to fish. In 1905, the Supreme Rather, treaties were imposed on them and they had
Court ruled that treaties must be interpreted as the no choice but to consent” (Choctaw Nation v. U.S.
Indians would have understood them. The Indians 1970, 630–631). Just before the turn of the twentieth
could fish on the river (U.S. v. Winans 1905, 371). In century, the Supreme Court restated an earlier
Winters v. U.S. (1908, 576), the same Court ruled decree that an Indian treaty “therefore must be con-
that, if ambiguities occur in the interpretation of strued, not according to the technical meaning of its
agreements and treaties, “ambiguities will be words to learned lawyers, but in the sense in which
resolved from the standpoint of the Indians.” they would naturally be understood by the Indians”
“Doubtful expressions are to be resolved in favor of (Jones v. Meehan 1899, 11; Choate 1912, 675; Washing-
the weak and defenseless people who are wards of ton v. Washington Fishing Assn. 1979, 676). In 1979, the
the nation, dependent upon its protection and good Court examined fourteen treaties among four Puget
faith” (Carpenter v. Shaw 1930, 367). In part, the Sound tribes in the Pacific Northwest, involving the
Court reasoned that American Indians could discern issue of treaty negotiations over rights to territory
neither the meaning of English phrases as a foreign and to fish; the Court ruled, “It is absolutely clear, as
language nor the disguised meaning of English Governor [Isaac] Stevens himself said, that neither
words and phrases, even if the Natives spoke some he nor the Indians intended that the latter ‘should be
English (Winters 1908, 577). Moreover, the McClana- excluded from their ancient fisheries,’ and it is
han decision of 1973 asserted, in a case that exam- accordingly inconceivable that either party deliber-
ined state taxation of a reservation resident’s ately agreed to authorize future settlers to crowd the
income, that the Indians’ dire circumstances sur- Indians out of any meaningful use of their accus-
rounding the forced signing of a treaty in 1868 lent tomed places to fish. That each individual Indian
credence to the interpretation of the document in would share an ‘equal opportunity’ with thousands
favor of the Indians (McClanahan 1973, 174). This of newly arrived individual settlers is totally foreign
canon of construction has wide application. It has to the spirit of the negotiations. Such a ‘right,’ along
been applied to Indian grazing rights that carried with the $207,500 paid the Indians, would hardly
with them priority rights within a national forest have been sufficient to compensate them for the mil-
even though the Indian treaty and subsequent lions of acres they ceded to the Territory [of Wash-
agreement made no mention of those specific rights ington]” (ibid.). In a shocking pronouncement, if
(Swim v. Bergland 1983, 716–718). In 1999, the Court treaties were signed between roughly equal sover-
also upheld such a reading of treaty rights in a deci- eigns, the Court reasoned, then each side was due
sion dealing with Chippewa Indians’ hunting and roughly half the fish harvest (ibid., 687). Because the
fishing rights across a swath of the southern Great tribes’ populations had dwindled while the settlers’
Lakes region (Mille Lacs 1999, 200, 206). numbers had exploded, the smaller tribes received
as much of the fish harvest as the much larger sur-
Treaties Must Be Interpreted rounding non-Indian populace.
as Indians Understood Them
Although court opinions have weighed in on all Treaties Must Be Construed in Favor of Indians
sides of treaty interpretation, one of the mainstays of The Supreme Court has held repeatedly that treaties
viewing an Indian treaty has been that the document are to be interpreted liberally in favor of the Indians
must be interpreted according to what the Indians when there is disputed language about the imple-
thought the articles meant. This is another major mentation of the terms of a treaty (ibid., 676, 678;
canon of treaty construction. As an example, the Choctaw Nation v. U.S. 1970, 432; Mille Lacs 1999, 200).
Choctaw treaty of 1830 provided that “in the con- This is yet another major canon of construction. One
struction of this Treaty wherever well founded doubt of the most generous interpretations of Indian treaty
shall arise, it shall be construed most favorably language was in the Winters decision of 1908, in
towards the Choctaws” (Treaty of 27 Sep. 1830 at which a federal district court held that it was implicit
Dancing Rabbit Creek, 7 Stat. 333, Article 18). After in the treaties that sufficient waters for tribal use
all, the United States sought out Native tribes for were preserved, preceding and preempting any

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Relevant Court Cases Related to Treaties 43

other rights subsequently established by state law or tions in 1997 and found in favor of the Indians. The
use. The Supreme Court affirmed the opinion. The court stated that “if the [Act] can reasonably be con-
tribe not only had treaty rights guaranteed to it but strued as the Tribe would have it construed, [then] it
also had reserved to it all the rights necessary to must be construed that way” (Ramah 1997, 1432;
carry out the purpose of the treaty, including the first Muscogee v. Hodel 1988, 1445).
use of scarce water for Indian agriculture. Courts
have rendered similarly supportive rulings in favor
of Indian rights under other treaties (Swim 1983, 716; Plenary Power
Grand Traverse Band 1998, 639). This canon of con- The U.S. Congress gave to itself the political author-
struction also has broad application to other areas of ity, also called plenary power, to enact laws altering
Indian country. An appeals court in 1998 applied the Indian policies. Plenary power also has an effect
liberal interpretation of a treaty from 1855 to grant upon Indian treaties. In its major statement on the
Yakima Indian truck drivers who were hauling subject, the Supreme Court ruled, in the infamous
reservation timber over state highways immunity decision involving the Kiowa leader Lone Wolf, that
from state vehicle permit fees (Cree v. Flores 1998, the commerce clause of the U.S. Constitution gave
769, 771). The same year, another appellate court Congress sweeping power over American Indians.
proclaimed that members of a Chippewa band could Indeed, Indian treaties were similar, in the Court’s
anchor their commercial fishing vessels at a public view, to federal statues (Lone Wolf v. Hitchcock 1903,
dock on the shore of a lake, as a result of construing 568; Warren v. Tax Comm 1965, 380.) As such, under
Indian treaties from 1836 and 1855 liberally in favor this approach Congress has the authority to limit
of the Indians, even though the documents did not rights promised to Indian tribes in treaties. Going
say anything specifically about commercial mooring back in time, after the American Civil War, amid a
rights (Grand Traverse Band 1998, 638–639). growing chorus to open Indian lands to pioneer set-
Court pronouncements have extended the max- tlement, Supreme Court justices reasserted congres-
ims for benefiting Indians when interpreting treaties sional plenary power in a decision regarding
to the examination of federal statutes. The canons of tobacco manufactured just inside the boundary of
treaty construction have been applied broadly to the Cherokee Nation. Article 10 of the Cherokee
federal statutes dealing with American Indians. A treaty of 1866 had clearly pledged that the Cherokee
unanimous Court in 1974 found that administrative could sell merchandise without paying “any tax
rules and regulations should favor tribes in inter- thereon which . . . may be levied by the United
preting treaty law (Morton v. Ruiz 1974, 229). Fur- States” (15 Stat. 167). In its decision, the Court rec-
thermore, where Indians are concerned, the normal ognized congressional authority to modify an
rules of interpretation for statutes do not apply: “. . . Indian treaty and to enact a measure in direct viola-
federal statutes are to be construed liberally in favor tion of the treaty “as if the treaty were not an ele-
of Native Americans, with ambiguous provisions ment to be considered” (Cherokee Tobacco 1870, 621).
interpreted to their benefit” (EEOC v. Cherokee Nation The Court relied upon what is called the “last-in-
1989, 939). Similarly, the usual deference shown in time” rule, under which a congressional statute that
court for agency administrative interpretation of is the latest enactment in time supersedes a previous
ambiguous statutes also does not apply to American treaty. Among succeeding examples is the Court’s
Indians (Muscogee [Creek] Nation v. Hodel 1988, ruling in 1882 that legislation creating the State of
1444–1445; Montana v. Blackfeet Tribe 1985, 766; Oneida Colorado in 1875 “repeals . . . any existing treaty”
County 1985, 247; Connecticut v. U.S. Dept. of the Inte- blocking its path (U.S. v. McBratney 1881, 623). Four-
rior 2000, 92; Ramah Navajo Chapter 1997, 1462). Two teen years afterward, the Court also stated that
additional examples illustrate the trend. A circuit Indian treaties “should not be made an instrument
court in 1982 held that the secretary of the interior for violating the public faith by distorting the words
had violated the Bureau of Indian Affairs’ regula- of a treaty,” thereby jeopardizing the rights of citi-
tions regarding petroleum leases, and any doubt zens in Wyoming fully to regulate hunting (Ward v.
over interpreting the regulations had to be resolved Race Horse 1896, 516). Since the latter could be
in favor of the Indians (Jicarilla v. Andrus 1982, 1332). amended or repealed, therefore, Congress could
An appeals court applied the same sentiment to BIA alter the terms or even abolish the terms of treaties
interpretation of an ambiguous statute regarding with tribes. Still later, the same high tribunal ruled
complicated educational funding formula calcula- that it was unfortunately “too late” for the president

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44 Governments and Treaty Making

of the United States to protect the Indians in their can Indian title to Seneca land coveted for the
treaty rights and left the Natives to the fate of con- Allegheny Reservoir. The Kinzua Dam project cre-
gressional whim (U.S. v. Winans 1905, 75). ated the reservoir. The Court concluded that Con-
gress must have known and considered the cata-
strophic impact of flooding 10,000 acres of Indian
Takings land, as well as using the remaining 2,300 acres for
The most notorious decision regarding the outright highway access to serve the reservoir (Seneca Nation
seizure of Indian Territory is the Tee-Hit-Ton Indians v. U.S. 1965, 56; Josephy 1984). When the Court
v. U.S. opinion of 1995. In that pronouncement, the approved the seizure of Tuscarora Indian land for a
Court voiced the draconian assumption that the hydroelectric project that would drown Native land,
United States could take Indian lands, even those Justice Hugo Black wrote a stinging dissent. He
protected by treaties. Moreover, the Court decreed, diverged from his colleagues’ determination that
under the Fifth Amendment the United States could public utilities, acting under license from the Federal
seize Tlingit lands in Alaska without payment Power Commission, could condemn Tuscarora lands
because of the false contention in the ruling that “the for a power project. Alarmingly, the Court ruled that
savage tribes of this continent were deprived of their “general Acts of Congress apply to Indians as well as
ancestral ranges by force” used by the conqueror to others in the absence of a clear expression to the
(Tee-Hit-Ton 1955, 289). The Tee-Hit-Ton band had no contrary” (FPC v. Tuscarora 1960, 120). Justice Black
treaty relationship with the United States. Congress remarked that “great nations like great men should
had not enacted legislation recognizing their lands keep their word” (ibid., 142)
or status. No recognition, no rights. As Congress had
not authorized ownership, Indian occupancy “may
be extinguished by the Government without com- Abrogation
pensation” (ibid., 288). Tribes lost their land rights To end or take away a treaty’s effect is to abrogate it.
because the conqueror took them. If unprotected by Courts have ruled that treaty terms may be violated
a treaty or a federal statute, then, the Court ruled, or altered if new circumstances arise that necessitate
the United States could take Indian lands without the change. Lawmakers have also rationalized the
due process of law, without just compensation, and abrogation of Indian treaties when the delegates
without concern for the usual requirement that such wanted to open Indian lands to further sale and set-
a taking of the land needed to be for a public pur- tlement. In its clearest expression of opposition to
pose. Constructing federal statutes so they state con- Indian treaties, at the start of the twentieth century
gressional intent to abrogate treaty rights, including in the Lone Wolf decision, the U.S. Supreme Court
vested property rights for which compensation must held that congressional plenary power granted to
be paid under the Fifth Amendment, avoided the that body full rights to end the terms of any Indian
obligation for financial payment. Through its deci- treaty when Congress deemed it necessary to carry
sion in Shoshone v. U.S. (1937), the Supreme Court out national policies. Judges drew from earlier
announced that treaty rights are a form of property Court edicts such as Cherokee Tobacco and Kagama.
and as such are under the protection of the Fifth The Lone Wolf opinion announced, “The power
Amendment to the U.S. Constitution, specifically, the exists to abrogate the provisions of an Indian treaty.
just compensation clause. If those rights are taken . . . [It] was never doubted that the power to abro-
away, then compensation must be paid. gate existed in Congress, . . . particularly if consis-
In 1980, the Court repudiated the taking of tent with perfect good faith towards the Indians”
Indian lands without compensation at the same time (Lone Wolf 1903, 568). The Court subsequently
the jurists also repudiated the most flagrant exercise chipped away at the Lone Wolf doctrine, but the pro-
of plenary power where American Indians are con- nouncement has never been fully repudiated and
cerned. In U.S. v. Sioux Nation, the Court held that remains established law.
just compensation must be paid under the Fifth Justice Edward Douglass White’s “good faith
Amendment if treaty rights are violated (U.S. v. effort” in the decision set a standard for violating
Sioux Nation 1980, 408). When seizing more than 20 Indian treaty rights and taking Indian land that suc-
percent of the Tuscarora Indian reservation for a cessive courts tried to follow. Courts looked for evi-
hydroelectric project, the Court invoked slim evi- dence that congressional deliberations considered
dence that Congress intended to abrogate the Ameri- some impacts from the abrogation of a treaty’s

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Relevant Court Cases Related to Treaties 45

terms. The high court has upheld the rule that Con- on occasion courts have held that, even if not stated
gress must clearly express its intent to abrogate an at all, the mere enactment of a statute violating a
Indian treaty (Missouri v. Holland 1919, 417, 421; treaty meant that Congress had considered all the
Mattz v. Arnett 1973, 505). consequences and intended to alter the treaty. This is
The decision of 1968 regarding the Menominee termed “implied abrogation.” In its decision of 1986,
tribe of Wisconsin supported Indian treaty rights justices surmised that “the [C]ourt believes that Con-
and found that the pertinent legislation, such as the gress would have” circumscribed Native hunting
tribe’s termination act in 1954 (68 Stat. 250) and Pub- and treaty rights. To the Court there was clear evi-
lic Law 280 in 1953 (67 Stat. 588) passed by the same dence—however, never stated—that Congress had
Congress, did not specifically mention Indian hunt- considered the consequences of violating treaty
ing and fishing rights falling under state jurisdiction. rights. In the clash over Indians’ use of feathers of
The Supreme Court applied the “not lightly species protected under federal and international
implied” test and ascertained that the Menominee wildlife enactments, the most noteworthy pro-
Termination Act did not abrogate those rights. More- nouncement involved two Yankton Sioux Indians.
over, the Court, in a remarkably solicitous attitude, The Court held that legislation to protect endan-
reported it did not believe that Congress intended to gered bald eagles and the requirement for permits
abrogate Native treaty rights in “a backhanded way” for Natives to take eagles for religious purposes
(Menominee 1968, 412). Building upon that decree, reflected Congress’s belief “that it was abrogating
the Court later added that it felt “extreme reluctance the rights of Indians to take eagles” even under
to find congressional abrogation of Indian treaty treaty guarantees (Dion 1986, 740, 743). Justices
rights in the absence of explicit statutory language so assumed that Congress must have discussed the
directing” (U.S. v. Washington 1975, 689). consequences and must have known the impact.
In a more recent announcement, the Supreme Opinions following in time have taken the presump-
Court ruled that, when Congress enacted legislation tion in a different direction. Jurists have held that, if
to protect the endangered bald eagle and required an old treaty or agreement did not specifically men-
permits for Indians to take eagles for religious pur- tion a modern need, then it was neither permitted
poses, such action reflected Congress’s belief “that it nor reserved to the tribe (Oregon Department 1985,
was abrogating the rights of Indians to take eagles” 754, 767, 770). In 1991, a district judge in Wisconsin
even under treaty guarantees (U.S. v. Dion 1986, 743; ruled that rights for Chippewa Indians reserved
Laurence 1991; Townsend 1989). Earlier, the Court under 1837 and 1842 treaties did not include the
attempted to clarify its stance when it said, in the right to harvest timber commercially (Lac Courte
Menominee decision in 1968, that treaties cannot be Oreilles 1991, 700). In 2001, the Court added a bitter
abrogated “in a backhanded way.” Instead, the twist to the usual interpretation of statutes in favor
Court held that there must be clear and explicit lan- of Indians when it ruled that any tax exemption aris-
guage to abrogate Indian treaties when Congress ing from Indian gaming must have been clearly and
enacts legislation. In 1986, however, the Court opin- explicitly expressed, turning the canon of construc-
ion lessened the requirement and expanded the tion on its head (Chickasaw Nation v. U.S. 2001, 90).
impact. The Court held that there need be only During the term of Chief Justice William Rehn-
“clear evidence that Congress actually considered quist, the Court drastically narrowed many rights
the conflict between its intended action on the one for Indian tribes. Brusque opinions sidestepped
hand and Indian treaty rights on the other, and chose tribal sovereignty in favor of state intrusions into
to resolve that conflict by abrogating the treaty” Native governmental activities. Throughout U.S. his-
(U.S. v. Dion 1986, 740; U.S. v. Santa Fe Pacific Railroad tory, American Indians have faced local and state
1941, 354). opposition to Native rights. Local and state authori-
Courts have sanctioned the violation of treaty ties have sometimes ignored Indian rights or at other
rights in a variety of other ways. Courts have seen fit times actively enforced local and state regulations
to permit the violation of Indian treaty rights under that violated indigenous rights. State officials have
the so-called conservation necessity standard for eroded or denied Indian rights to fish, hunt, and
states to impose regulations on Indian hunting, fish- gather for seasonal needs. That line of reasoning
ing, and gathering rights in the interest of enforce- echoes in court opinions. Anti-Indian groups, when
ment of state conservation regulations (Puyallup Tribe not slinging vitriol over the subject of Indian rights,
1968, 398; Antoine 1974, 207–208). More disturbing, advocate either terminating tribes and abolishing

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46 Governments and Treaty Making

tribal rights or severely restricting those rights Ramah Navajo Chapter v. Lujan, 112 F. 3d 1455 (10th
(Williams and Neubrech, 1976). Some of the assump- Cir., 1997).
tions are reflected in Court rulings. In 1998, a major- Seneca Nation of Indians v. U.S., 338 F. 2d 55 (2d Cir.,
1964); cert. denied, 380 U.S. 952 (1965).
ity opinion remarked that American Indian tribal
Shoshone v. U.S., 304 U.S. 111 (1937).
rights will “fade over time” (South Dakota 1998, 798). South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789
The chief justice, in a biting 1999 dissent, acidly com- (1998).
mented that Indian treaty rights are only “temporary Swim v. Bergland, 696 F. 2d 712 (1983).
and precarious” (Mille Lacs 1999, 219–220). Tee-Hit-Ton Indians v. U.S., 348 U.S. 272 (1955).
C. Blue Clark U.S. v. Dion, 476 U.S. 734 (1986).
U.S. v. Kagama, 118 U.S. 375 (1886).
References and Further Reading U.S. v. McBratney, 104 U.S. 621 (1881).
Court Cases U.S. v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941).
Antoine v. Washington, 420 U.S. 194 (1974). U.S. v. Sioux Nation, 448 U.S. 371 (1980).
Carpenter v. Shaw, 280 U.S. 363 (1930). U.S. v. Washington, 520 F. 2d 676 (1975).
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). U.S. v. Winans, 198 U.S. 371 (1905).
Cherokee Tobacco, 78 Wall. 616 (1870). Ward v. Race Horse, 163 U.S. 504 (1896).
Chickasaw Nation v. U.S., 534 U.S. 84 (2001). Warren Trading Post v. State Tax Commission, 380 U.S.
Choate v. Trapp, 224 U.S. 665 (1912). 685 (1965).
Choctaw Nation v. U.S., 397 U.S. 620 (1970). Washington v. Washington State Commercial Passenger
Connecticut v. U.S. Department of Interior, 228 F. 3d 82 Fishing Vessel Association, 443 U.S. 658 (1979).
(2d Cir., 2000). Winters v. U.S., 207 U.S. 564 (1908).
Cree v. Flores, 157 F. 3d 762 (9th Cir., 1998). Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
Equal Employment Opportunity Commission v. Cherokee Books and Articles
Nation, 871 F. 2d 937 (10th Cir., 1989). Chambers, Reid P. 1975. “Judicial Enforcement of the
Federal Power Commission v. Tuscarora Indian Nation, Federal Trust Responsibility to Indians.”
362 U.S. 99 (1960). Stanford Law Review, 27 (May): 1213–1248.
Grand Traverse Band of Ottawa and Chippewa Indians v. Clark, Blue. 1999. Lone Wolf v. Hitchcock: Treaty Rights
Director of Michigan Department of Natural and Indian Law at the End of the Nineteenth
Resources, 141 F. 2d 635 (6th Cir., 1998). Century. Lincoln: University of Nebraska Press.
Jicarilla Apache Tribe v. Cecil Andrus, 697 F. 2d 1324 Cohen, Fay. 1986. Treaties on Trial: The Continuing
(10th Cir., 1982). Controversy over Northwest Indian Fishing Rights.
Jones v. Meehan, 175 U.S. 1 (1899). Seattle: University of Washington Press.
Lac Courte Oreilles Band of Lake Superior Chippewa Cohen, Felix. 1942. “Indian Treaties.” In Handbook
Indians v. Lester Voigt, 700 F. 2d 341 (1983). of Federal-Indian Law, ed. Felix Cohen, 33–67.
Lac Courte Oreilles Band of Lake Superior Chippewa Washington, DC: Interior Department/
Indians v. State of Wisconsin, 758 F. Supp. 1262 Government Printing Office. [Repr. by
(W.D.Wis., 1991). Interior Department, 1958; UNM, 1972; ed.
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). by Rennard Strickland, Mitchie, Bobbs-
Makah Indian Tribe v. McCauly, 39 F. Supp. 75 (1941). Merrill, 1982].
Mattz v. Arnett, 412 U.S. 481 (1973). Deloria, Vine, Jr. 1996. “Reserving to Themselves:
McClananan v. Arizona Tax Commission, 411 U.S. 164 Treaties and the Powers of Indian Tribes.”
(1973). Arizona Law Review, 38, 3 (Fall): 963–980.
Menominee Tribe v. U.S., 391 U.S. 404 (1968). Deloria, Vine, Jr., and David E. Wilkins. 1999. Tribes,
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 Treaties, and Constitutional Tribulations. Austin:
U.S. 172 (1999). University of Texas Press.
Missouri v. Holland, 252 U.S. 416 (1919). Jones, Dorothy V. 1982. License for Empire: By Treaty in
Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). Early America. Chicago: University of Chicago
Morton v. Ruiz, 415 U.S. 199 (1974). Press.
Muscogee (Creek) Nation v. Hodel, 851 F. 2d 1439 Josephy, Alvin, Jr. 1984. “Cornplanter, Can You
(D.C. Cir., 1988). Swim?” In Now That the Buffalo’s Gone, ed. Alvin
Oneida County v. Oneida Indian Nation of New York Josephy, Jr., 127–150. Norman: University of
State, 470 U.S. 226 (1985). Oklahoma Press.
Oregon Department of Fish and Wildlife v. Klamath Laurence, Robert. 1991. “The Abrogation of Indian
Indian Tribe, 473 U.S. 753 (1985). Treaties by Federal Statutes Protective of the
Puyallup Tribe v. Department of Game of Washington, Environment.” Natural Resources Journal, 31
391 U.S. 392 (1968). (Fall): 859–886.

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Relevant Court Cases Related to Treaties 47

Prucha, Francis Paul. 1984. The Great Father: The Wisconsin Chippewa.” Wisconsin Law Review
United States Government and the Indians. 2 vols. (May-June): 375–414.
Lincoln: University of Nebraska Press. Wilkinson, Charles F., and John M. Volkman. 1975.
Prucha, Francis Paul. 1994. American Indian Treaties: “Judicial Review of Indian Treaty Abrogation:
The History of a Political Anomaly. Berkeley, Los ‘As Long as Water Flows, or Grass Grows Upon
Angeles, and London: University of California the Earth’—How Long a Time Is That?”
Press. California Law Review, 63 (January): 601–661.
Sabo, George. 1992. “Rituals of Encounter: Williams, C. Herb, and Walt Neubrech. 1976. Indian
Interpreting Native American Views of Treaties: American Nightmare. Seattle, WA:
European Explorers.” Arkansas Historical Outdoor Empire.
Quarterly, 51 (Spring): 54–68. Williams, Robert A., Jr. 1997. Linking Arms Together:
Townsend, Michael. 1989. “Congressional Abrogation American Indian Treaty Visions of Law and Peace,
of Indian Treaties: Reevaluation and Reform.” 1600–1800. Oxford: Oxford University Press.
Yale Law Journal, 98 (February): 793–812. Wunder, John R. 1985. “No More Treaties: The
Wilkins, David E., and K. Tsianina Lomawaima. 2001. Resolution of 1871 and the Alteration of
Uneven Ground: American Indian Sovereignty and Indian Rights to Their Homelands” in
Federal Law. Norman: University of Oklahoma Working the Range: Essays on the History of
Press. Western Land Management and the Environment,
Wilkinson, Charles F. 1991. “To Feel the Summer in ed. John R. Wunder, 39–56. Westport, CT:
the Spring: The Treaty Fishing Rights of the Greenwood Press.

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Indian Treaties as International Agreements
Development of the European
Nation State and International Law

C
ommunities of peoples have negotiated the Portuguese reached the Madeira Islands and

C
agreements with one another for thousands ushered in the European age of exploration. Seven
of years. Treaties dating from Babylonian, years later, Portuguese explorers had reached the
Assyrian, and Hittite times still exist, written in Azores; in 1456, the Cape Verde Islands.
cuneiform on clay tablets and laying out terms of Four years before Bartholomeu Dias sailed
peace, land exchange, and trade. First applied to the around the southernmost tip of Africa in 1488, King
negotiation process rather than to the document, the John of Portugal had declined to support Christo-
term treaty ultimately came to mean an agreement pher Columbus’s proposal to sail eastward. Acquir-
made by the highest authority, or sovereign, as ing the support of Queen Isabella of Spain, Colum-
opposed to sponsions and other agreements made bus rediscovered the Western Hemisphere in 1492.
without the full commission of the sovereign To avoid conflict with Portugal, Queen Isabella
(Grotius 1925, 391). The current understanding of requested that Pope Alexander VI divide these
treaties, as documents negotiated to establish rela- newly discovered oceans and lands between the two
tions among states and as a primary source of inter- nations. In 1494, Pope Alexander VI, following nego-
national law, developed as Europe moved from the tiations between King John II and Queen Isabella,
Middle Ages to the Renaissance. issued the Treaty of Tordesilla of 1494, dividing the
In the fifteenth century, the Catholic Church, earth by drawing a demarcation line 370 leagues
despite its history of corruption and schisms, west of the Cape Verde Islands.
retained its preeminent power as the religious and As the wealth from these new lands swelled the
secular European authority. The pope, considered Spanish and Portuguese coffers, the French and
God’s representative, possessed the authority to English explorers, disputing the pope’s authority to
crown and dispose of secular rulers, to settle dis- divide the earth, sent their own explorers to claim
putes, to excommunicate individuals from the body new lands. Papal authority came under decided
of the Church and from everlasting salvation, and to political attack in 1576 when the French jurist and
bestow legitimacy on new ideas and fields of knowl- natural law philosopher Jean Bodin published The
edge or declare them heretical. Three hundred years Six Books of the Commonwealth. Contained within
later, technological advancements, discoveries of these essays was the new philosophical concept of
new lands and resources, and the rise of the nation- sovereignty. Sovereignty, Bodin argued, was the
state had severely undermined the authority of the existence of a unified authority in a political commu-
Catholic Church. nity. As the sovereign, the French king held absolute
The introduction of multiple masts and sails and perpetual power within the French state (Bodin
and construction of the caravel (a small, three- 1576). The monarch derived this total authority to
masted ship) allowed European rulers to expand govern from God, not from the pope. As sovereign,
their trade and commerce and to sail to new parts of the king possessed the authority to make laws bind-
the world, where they found lands of untold ing on its subjects, to declare war and peace, to
resources, sizes, and possibilities. Johannes Guten- establish state offices, and to act as the final court of
berg’s invention of movable type around 1450 redress.
opened education and knowledge to those beyond As the political, economic, and military powers
the Church. The adoption of gunpowder from China of the developing European nation-states grew and
between 1500 and 1600 created a military revolution, the pope’s authority declined, monarchs recognized
allowing European rulers the means to solidify and the need to regulate their interactions through the
expand their control over their lands in continental development of binding international legal princi-
Europe and in the newfound territories. ples and documents, which bore an assortment of
All these technological improvements assisted names, including treaty, agreement, act, statute, and
the Portuguese and the Spanish in their rediscovery covenant, among many others. By 1739, Jean
of Africa and the Western Hemisphere. In 1420, Barbeyric had listed sixty subjects of treaties. A ref-
under the direction of Prince Henry the Navigator, erence in the 1427 British Rolls of Parliament is the

49
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50 Governments and Treaty Making

first known European use of the term treaty (Meyers Suárez, and Francisco de Vitoria (the latter two
1957, 579). Approximately a quarter century later, known as among the first proponents of interna-
the printing of papal bulls in 1461 is recorded as the tional law) vociferously argued against Spanish poli-
first publication of an international document. The cies in the Western Hemisphere, raising questions
first collection of treaties was published in 1643, five and putting forth principles relating to just war, the
years before the negotiation of the Treaty of West- proper means of obtaining title to inhabited lands,
phalia, identified by many scholars as the first mod- statehood, and the just treatment of peoples. Often
ern treaty leading to the development of modern referred to as the father of human rights, Vitoria
international relations (Liverani 1980, 50). argued that the proper mode for relating to the
International law at this time had no prescribed Native inhabitants was through negotiations and
procedure or format for treaty making. As long as treaties. Only if the Native inhabitants refused to
the appropriate sovereign authority had approved conclude treaties establishing a relationship with
the negotiations and provisions, the agreement con- Spain could the Spanish legally and morally go to
stituted a treaty, whether written or oral. In 1758, war. Slowly but eventually, Spanish laws in theory
Emmerich de Vattel, a Swiss jurist, published the (but not always in practice) reflected the ideas and
Law of Nations, considered the first textbook on inter- principles espoused by these thinkers.
national law. In the Law of Nations, Vattel defined a As explorers and settlers traveled to the Western
treaty as “[a] compact entered into by sovereigns for Hemisphere, increasing the competition among the
the welfare of the State, either in perpetuity or for a European powers, rulers directed their representa-
considerable length of time . . .” (Vattel 1916, 160). tives to negotiate with the Indian nations for access
The highest state authority could only enter into to land, resources, and trade and to form military
treaties (ibid., 160). In Sections 220–221, Vattel alliances. As suggested by Vitoria, the negotiation of
emphasized the principle that became a fundamen- treaties proved the most effective procedure for
tal rule of international law, pacta sunt servanda, that accomplishing these objectives. The total number of
treaties are “sacred” and must be upheld. States that treaties concluded by Spain and the other European
violate “the faith of treaties”—a faith that is sacred— nations with the Indian nations is unknown. Many
violates the law of nations. Treaties, the European early treaties were oral, their existence known only
theorists agreed, created international norms that are through descriptions written at the time of the coun-
binding and inviolable. cils and the subsequent agreements. Over time,
European representatives, needing to prove the exis-
tence of these agreements to their competitors, for-
Treaty Negotiation malized the agreements in written form. Many of
between European Powers these documents have disappeared or remain hid-
and Indian Nations den in state and personal archives and personal col-
The Spanish monarchs, who were highly religious lections throughout the world.
as well as legalistic, held innumerable discussions As discussed below, European states in general
and councils to determine the proper treatment of regarded the treaties concluded with the Indian
these newly discovered inhabitants and their lands. powers as equal to and as legally binding as the
Laws were published and revised, and conquests treaties they concluded with one another. Vattel also
stopped for various periods as the most highly addressed this issue in Law of Nations, stating that
regarded intellectuals of the Spanish realm debated “faith of treaties has no relation to the difference of
any number of issues. Were these Natives a natural religion, and cannot in any manner depend upon it.”
part or a new branch of animals or humanity? Did As for treaties concluded with infidels, Vattel, citing
their nature as heathens allow the Spanish to Grotius, states that only natural laws and not spiri-
enslave them, to take their lands, to make war and tual law were to govern the “Rule of treaties of
conquer them, and to forcibly convert them to Nations” (ibid., 162). Grotius, too, had earlier
Christianity? referred to this issue, pointing out that treaties made
Spanish laws and policies toward the Native between equal sovereigns and those made between
inhabitants and their lands initially allowed the unequal sovereigns differed in subject matter, not
unspeakable annihilation of Native communities validity. Treaties between equal sovereigns generally
and confiscation of their lands and resources. The- dealt with the return of captives, the restoration of
ologians such as Bartolomé de Las Casas, Francisco property, commerce arrangements, and mutual

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Indian Treaties as International Agreements 51

assistance. Treaties between strong and weak heads objectives through give-and-take. Although they
of states, in which an impairment of sovereignty supposedly remained legally binding, the treaty
resulted, discussed indemnities, withdrawal from procedure and document, once concluded, had ful-
territory, and the surrender of fortresses. filled their purpose.
Treaty making, no matter the time or culture, This differing cultural understanding of agree-
involves a negotiation process followed by a sym- ments further affected the two cultures’ choices of
bolic acceptance of the agreed-upon terms. As did negotiation procedures. Given the sanctity and total-
most societies, the Indian nations of North, Central, ity with which many tribal peoples imbued their
and South America possessed their own traditional decisions, the agreement had to be thoroughly con-
forms of negotiating agreements, resolving disputes, sidered and supported. In many tribes, those given
and ending wars. Vine Deloria, Jr., and Raymond J. the authority to negotiate did not possess the power
DeMallie, in their important two-volume work, Doc- to ratify. Depending upon the particular tribal
uments of American Indian Diplomacy: Treaties, Agree- arrangement, decisions may have required the sup-
ments, and Conventions, 1775–1979, describe two of port of clan leaders, the approval of related bands, or
these procedures. The Indian nations in the Great full tribal consensus. This decision-making process
Lakes area solidified their agreements with the often proved lengthy and infuriating to the Euro-
exchange of wampum and gifts. Other Indian nations peans and (especially later) to the Americans, who
employed special and sacred ceremonies that, once preferred to settle issues quickly and smoothly.
performed, signified the end of hostilities and the The Dutch negotiated one of the first known
restoration of mutual peace. Among the Sioux peo- treaties in North America, with the Iroquois in 1613
ple, the sacred pipe ceremony restored peace among (Van Loon 1968, 22–26). D’Arcy McNickle discusses
enemies. DeMallie and Deloria (1999) also provide a an important treaty concluded between the Mo-
general overview of Indian treaty-making proce- hawks and Dutch in 1643 that may have played a
dures. No matter the tribe’s particular negotiation role in the Mohawks’ annihilation of the Huron
procedure or the ultimate symbol of acceptance, the Nation in 1645. France concluded many treaties with
tribal parties, like the western world, regarded the tribes, including a treaty of friendship with the
negotiations and ensuing agreements as binding. Onondaga on June 2, 1622, two with the Six Nations
Although the Native and the western worlds in 1633 and 1635, and two with the Huron Nation in
both regarded their negotiated agreements as legiti- 1641 and 1645 (McNickle 1973, 130). The total num-
mate and valid, Deloria and DeMallie (1999) point ber of pre–Revolutionary War treaties concluded by
out a subtle but important distinction between the England and the colonies with the Indian nations is
two cultures in their understanding, approach, and unknown. Benjamin Franklin published thirteen
ultimate responsibility to these agreements. Among treaties concluded by the Pennsylvania colony with
Native communities, agreements— especially those various tribes from 1738–1762 (Boyd 1938). Later, on
ending a state of conflict—represented a sacred com- Canada’s behalf, Great Britain concluded eleven
mitment by each side to alter their relationship with treaties with Indian nations living within Canadian
one another. The agreement to establish peace was a boundaries. It is interesting to note that Canada did
decision to actively create “a distinct state of being.” not receive the authority to negotiate treaties as a
It was not, as understood in western society, simply sovereign entity until the passage of the Statute of
an agreement to desist from certain practices that Westminster in 1931. Another fifty-four treaties con-
caused conflict. From a cultural perspective, Indian cluded between the English colonies and the eastern
nations understood treaties and agreements as tribes from 1677 to 1768 appear in a 1917 collection
sacred. The words, whether spoken or written, were by H. DePuy (DePuy 1917). Deloria and DeMallie
living representations of each party’s commitment to include information on another five treaties that
the other. England concluded with various non-Iroquoian
The western approach to treaty making was of tribes, such as the Chippewa, the Potawatomi, the
a different and far more practical magnitude. Ottawa, and others, between 1777 and 1798.
Although, as Vattel emphasized, states were bound The treaty of 1752 between Governor Peregrine
by natural law to honor their treaty commit- Thomas Hopson and the Micmac Indians serves as
ments—otherwise they were of little benefit—the an example of the many treaties concluded during
treaty process was an efficient procedure and the pre–Revolutionary War period. The treaty com-
treaties a practical vehicle for obtaining one’s prised eight articles, the first of which renewed

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52 Governments and Treaty Making

former treaties. The second article established an Spain agreed, and in the treaty signed at Pen-
alliance between the parties, and the third and sacola on June 1, 1784, the Creeks promised to
fourth articles detailed the signatories’ agreements “maintain an inviolable peace and fidelity toward
on trade and hunting and fishing practices. The fifth Spain” and agreed to the formation of a mutual
and sixth articles stipulated the payment, agreed to defense alliance (American State Papers, 279). This
by the English, to the tribe in return for their negotia- treaty was the first of several that Spain concluded
tions. In the seventh article, the tribes agreed to with tribes in western Florida for military alliances
assist shipwrecked mariners, and the final article and for small land cessions for the construction of
provided a procedure for resolving disputes (DePuy Spanish forts and trading stations (Holmes 1969,
1917, 30). 140–154).
Two years later, in October 1754 in Philadelphia, Although the Creeks promised in the Pensacola
the Massachusetts, Connecticut, and Pennsylvania treaty to obey the “sovereign orders” of the
colonies negotiated one of their most important province’s commandant, the Spanish clearly did not
treaties with the Six Nations (McNickle 1973, 137). In consider the Creeks to be stripped of the external
a treaty of military alliance, the Six Nations agreed to sovereignty. In 1786, the Muscogee Creek Nation,
align themselves with the English in their war without consulting their Spanish allies, waged war
against France—an alliance that may have saved on Georgia for refusing to stop settlers from moving
England’s claim to the eastern half of the United onto the Creek lands. The Creeks reminded their
States (ibid., 132.). A final example is a multilateral protector that the Pensacola treaty provided for a
treaty negotiated in 1758 among the Pennsylvania mutual alliance, and Spain contributed arms and
and the New Jersey colonies and the Six Nations, the ammunitions to the Creek’s war.
Delaware, the Minnisink, and other Indian tribes to Six years later, changes in the political and
settle a land dispute between New Jersey and the commercial climate persuaded the Creek Nation to
Minnisink Indians and to cede formerly purchased sign the Treaty of New York with the newly formed
lands back to the Six Nations (DePuy 1917, 44). United States on August 14, 1791. Though dis-
Spain, as mentioned earlier, concluded a num- pleased, the Spanish governor conceded that he
ber of treaties with Indian nations throughout the was powerless to alter the situation, as the Creeks
Western Hemisphere. Within the area that became were an independent nation and could treat with
the United States, DeMallie and Deloria list two whom they pleased. In the treaty, the United States
groups of Spanish treaties negotiated with the agreed to pay the Creeks for lands taken by Georgia
Indian nations. The first list includes treaties reached citizens. In return, the Creeks offered friendship
between Spain and the southeastern Creek, Semi- and accepted protection from the United States
nole, Chickasaw, Choctaw, and Cherokee nations over Creek lands located with the American sphere
between 1784 and 1802. The second group covers of influence. The Creeks refused, despite U.S. objec-
treaties negotiated between Spain and the tions, to relinquish Spanish protection over those
Comanche, the Navajo, and the Apache from 1786 to Creek lands within the Spanish sphere. The Creeks
1819 (DeMallie and Deloria 1999, 106–107). also rebuffed the American offer to establish trade
The Spanish treaties with the southeastern relations with the United States, preferring to main-
Indian nations are particularly interesting for their tain the services of the English. Article 2 of the
insight into the Europeans’ view of Indian treaties. treaty further illustrates the Creeks’ decision to
Following British cession to Spain of its claims to maintain their external independence. In this arti-
Florida, the Muscogee Creek chief, Alexander cle, the Creeks agreed not to negotiate with any
McGillivray, wrote to the Spanish governor, asking individual, state, or citizen of a state. They did not,
that Spain accept the Creek Nation as a protectorate: however, agree to refrain from treating with other
foreign nations. Two years after the Treaty of New
If in the event of war Britain has been York, the Creeks, along with the Alibamon,
compelled to withdraw its protection from us, Choctaw, Chickasaw, and Talapuche nations,
she has no right to transfer us with their former signed another treaty with Spain to protect their
possessions to any power whatever contrary to boundaries against American encroachment and to
our inclination and interest. We certainly as a provide the tribes with certain necessities. In Article
free Nation have a right to choose our protector 19, the tribes agreed to maintain an offensive and
. . . (Caughey 1938, 64–65) defensive alliance among the Chickasaw, Creek,

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Indian Treaties as International Agreements 53

Choctaw, Talapuche, Alibamon, and Cherokee Whereas, the enemies of the United States have
Nations. endeavored by every artifice in their power, to
Mexico’s independence from Spain did not end possess the Indians . . . with an opinion, that it
the use of treaty making as a vehicle for settling dis- is the design of the states (to) take possession of
putes among the various tribes and between the their country; to obviate such false suggestions,
provincial and national governments, especially the United States do engage or guarantee to the
along the southern border areas. Annual reports of aforesaid nations of Delawares, and their heirs,
the commissioner of Indian affairs in 1872 and 1874 all their territorial rights, in the most fullest and
refer to Mexico’s efforts to secure its borders by ample manner, as it hath been bounded by
negotiating agreements with the Apache. DeMallie former treaties. (Article Six 1975, 3)
and Deloria list more than twenty treaties, an esti-
mated one-third of the treaties Mexico negotiated The success of the United States in negotiating
from 1821 to 1850, with Indian nations currently with the Delaware was significant, for most eastern
found within the U.S. boundaries. Even Russia, tribes, having found their dealings with the colonists
which settled only briefly in the continental United less than honorable, aligned with the British. The
States, signed a treaty in 1817 with the Pomo Indi- Americans did succeed in obtaining the support of
ans, located north of present-day San Francisco. the Oneida and the Tuscarora Nations—an alliance
that effectively split the Iroquois Confederacy and at
least reduced, if not ensured, the time frame to
Early American Treaties American victory.
with the Indian Nations By the late 1780s, Congress had recognized the
As the outbreak of war appeared imminent, England failure of the Articles of Confederation as a govern-
and the new revolutionary government engaged in a ing document. In 1789, the states ratified the Consti-
flurry of negotiations with the Indian nations, each tution, establishing a stronger central government
seeking military allies or, at minimum, Indian neu- with control over a federal system. Article II, Section
trality in the war. Not surprisingly, the new Ameri- 2, clause 2 granted to the president “[the] Power, by
can government, operating under the Articles of and with the Advice and Consent of the Senate, to
Confederation, adopted the English procedure of make Treaties, provided two thirds of the Senators
negotiating with the Indian nations through treaties. present concur.” On May 25, 1789, President George
This tradition, in fact, directly affected the colonies’ Washington directed Secretary of War Henry Knox
agreement over the treaty-making power in Article to deliver two treaties to the Senate for its first action
IX of the Articles of Confederation. Fearful that the of advice and consent. President of the Senate John
new Congress would negotiate unfavorable treaties Adams received in Knox’s package two treaties that
concerning land cessions, southern representatives the Continental Congress had negotiated with
to the Constitutional Convention insisted that all Indian nations at Fort Harmar. On June 12, the Sen-
treaties required the support of nine states for ate selected a three-member committee to consider
approval. these treaties. On September 8, the Senate Executive
The new government concluded its first treaty Journals noted that the Senate had adopted a resolu-
in 1778, with the Delaware Nation. Differing little in tion advising the president “to execute and enjoin an
subject and tone from treaties later concluded with observance of” one of the two treaties, the treaty
European nations, the United States promised peace with the Wyandot and other Indian nations.
and friendship with the Delaware Nation, estab- After receiving the Senate’s approval, President
lished trade between the two nations, and instituted Washington sent another communication to the Sen-
a procedure for punishing transgressors. Of particu- ate, asking the Senate to clarify whether Indian
lar interest was Article 6, which guaranteed that, if treaties required Senate approval:
the Delaware, in concert with other tribes, wished to
form a state within the Union, the Delaware would The treaties with certain Indian Nations, which
be appointed leaders of the congressional delega- were laid before you with my message of the
tion. Of further importance was the treaty’s forth- 25th of May last, suggested two questions to
right response to British charges that the United my mind, viz: 1st, Whether those treaties were
States planned to seize Indian lands illegally and to be considered as perfected, and, conse-
violate its promises to honor prior treaties: quently as obligatory, without being ratified. If

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54 Governments and Treaty Making

not, then 2ndly, whether both, or either, and Over time, the treaties concluded by the United
which of them, ought to be ratified? (Ralston States with the Indian nations became increasingly
1920, 15) formal and legalistic, using the style and form and
covering the subject matter common to all treaties of
The Senate assigned the question to another the time. Indian treaties, written in the same lofty
three-member committee. The following day, the language, were divided into preamble, body, and
committee reported its conclusion that Indian salutation. The treaty concluded between the United
treaties did not require Senate approval. The full States and the Creek Nation in 1790 at New York
Senate rejected the recommendation and responded opens with the following preamble:
to Washington that the Constitution required Senate
ratification of all treaties negotiated with Indians. The parties being desirous of establishing
For the next three years, representatives and permanent peace and friendship between the
government officials remained at odds over the Con- United States and the said Creek Nation, and
stitution’s intent regarding the extent and form of the citizens and members thereof, and to
the Senate’s advice prior and during the negotiation remove the causes of war by ascertaining their
process. To Washington’s dismay, during the first limits, and making other necessary, just and
few years the Senators took it upon themselves to friendly arrangements: the President of the
play an integral role in the negotiation process. In United States, Secretary for the Department of
1794, the Senate issued its first refusal to consent to a War, whom he hath constituted with full
treaty transmitted from the executive branch. This powers for these purposes, by and with the
“first” also involved an Indian treaty—a treaty that advice and consent of the Senate of the United
the executive branch had concluded with the Illinois States and the Creek Nation, by the under-
and Wabash nations without advance Senate signed kings, chiefs and warriors, representing
involvement. It is unclear whether the Senate’s the said nation, have agreed to the following
refusal to consent to the treaty arose from their objec- articles: . . .
tions to the treaty’s terms or from their lack of prior
involvement. The salutation reads, “In witness of all and
The United States adopted similar procedures whole Creek nation, the parties have hereunto set
whether negotiating with European powers or the their hands and seals, in the City of New York, with
Indian nations. International law requires that a the United States, this seventh day of August, one
valid treaty must be negotiated on the authority of thousand seven hundred and ninety,” after which
the highest sovereign. Every nation has developed each participant affixed his signature.
its own diplomatic procedures and documentation In keeping with Grotius’s (1925) discussion of
to assure the negotiation authority of other parties. international treaties, Indian treaties dealt with the
In 1786, Congress authorized the War Department to fixing of boundaries (Treaty of January 21, 1785;
manage Indian relations. The executive branch con- Treaty of November 28, 1785; Treaty of August 19,
tinued this procedure under the new Constitution, 1825), the promise of mutual assistance (Treaty of
placing the Indian Office (the precursor of the January 9, 1789; Treaty of July 22, 1814), the
Bureau of Indian Affairs) under the authority of the exchange of prisoners and hostages (Treaty of Octo-
War Department. From 1824 until the creation of the ber 22, 1784; Treaty of January 21, 1785; Treaty of
Department of the Interior in 1849, the Department November 28, 1785), and the establishment of gar-
of War regulated Congress’s relationship with the risons and forts (Treaty of June 16, 1802; Treaty of
Indian nations. Once the president or Congress November 10, 1808). Also included as subjects of
requested the negotiation of a treaty and Congress negotiations, were provisions on passports (Treaty of
appropriated the necessary funds, the secretary of July 2, 1791; Treaty of August 7, 1790), extradition
war issued a document or commission to the nego- (Treaty of July 2, 1791; Treaty of March 12, 1858;
tiators outlining the government’s objectives for the Treaty of June 19, 1859), white immigration onto
treaty. Whether the government’s interest lay in land Indian lands (Treaty of May 24, 1835; Treaty of
cessions, trade, alliances, or other matters, these doc- March 6, 1861), and the right to declare war and con-
uments provided general instructions concerning clude treaties with third powers (Treaty of August
the promises made and the funding allowed. 24, 1835; Treaty of May 26, 1837).

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Indian Treaties as International Agreements 55

The new government’s decision to entrust the at their exclusion from the Treaty of Peace negotia-
State Department to maintain copies of Indian tions. Joseph Brandt, chief of the Mohawk, in partic-
treaties among their files of other international ular voiced his opposition to the treaty, pointing out
agreements further illustrates that the United States that King George had given his personal guarantee
regarded Indian treaties as international agreements. that the British would protect the Mohawks’ aborig-
Listed first in State Department records is a treaty in inal lands in New York State and Canada. Anxious
1722 between the Six Nations and New York and to reduce their allies’ concerns, in Article 3 of the Jay
Pennsylvania. In 1837, the State Department com- Treaty the British negotiated an agreement that the
missioned Samuel D. Langtree and John Louis Indian nations could freely travel and trade goods
O’Sullivan to publish the Indian treaties concluded across the new border.
between 1789 and 1813. The following year, the U.S. government con-
Further evidence exists that, in addition to using cluded a treaty with several Indian nations, includ-
international treaty standards of procedure, form, ing, among others, the Wyandot, the Miami, the
and tone in negotiating Indian treaties, the United Delaware, the Shawnee, and the Chippewa. During
States regarded Indian treaties as having an interna- this period, the relations that traders established
tional impact on its domestic and foreign policy with the Indian nations often determined and sym-
decisions. As noted above, Indian treaties deter- bolized the tribes’ relationship with Americans.
mined the structure of treaty making under the Arti- Given that the United States possessed no jurisdic-
cles of Confederation. Indian treaties constituted the tion over Indian lands, the U.S. government had no
first set of treaties delivered to the Senate and control over traders admitted onto Indian lands. In
rejected by the Senate under the new Constitution. an effort to control traders and commerce with
The precedent for obtaining Indian lands through Indian nations, the government included, as a point
treaties ultimately allayed concerns that President of negotiation with tribes, an article that requested
Thomas Jefferson had overstepped his executive tribes to admit only those traders who had obtained
authority in concluding a treaty with France for the the proper license from the U.S. government. Upon
Louisiana Purchase in 1803. The necessity to subject hearing of this treaty stipulation, Great Britain
Indian treaties to the same international legal stan- expressed concern that this provision violated Arti-
dards as all treaties also affected U.S. foreign policy cle 3 of the Jay Treaty. The following year, the United
decisions. In 1795, England expressed concern to the States agreed to negotiate an explanatory note, a
United States that an American treaty signed that document recognized under international law as
year with several Indian nations had abrogated part having the status of a binding treaty, reaffirming the
of the Jay Treaty of 1794 negotiated between England stipulations of the Jay Treaty by stating that the
and the United States the previous year. treaty concluded with the tribes at Greenville,
The Treaty of Peace ending the American war of August 3, 1795, “can not be understood to derogate
independence had left several outstanding issues. in any manner from the rights of free intercourse and
Until France’s declaration of war on England in commerce, secured by the third article . . .” (Respect-
1792, another war appeared imminent between ing the Liberty 1794).
England and the United States. Now anxious to neu- The U.S. recognition of the international legiti-
tralize American involvement in this war, England macy of the treaties concluded between the Indian
agreed to sign the Treaty of Amity, Commerce, and nations and other European powers is further illus-
Navigation, referred to as the Jay Treaty, with the trated in Article 6 of the 1803 treaty concluded
United States in November 1794. This treaty between the United States and France for the
resolved several key conflicts between the two Louisiana Cession:
nations by creating a joint commission to settle
boundary disputes, reestablishing American trade The United States promise to execute such
with the West Indies, providing for British with- treaties and articles as may have been agreed
drawal from forts in the Old Northwest, and reaf- between Spain and the tribes and nations of
firming the rights of Indian nations vis-à-vis the new Indians until by mutual consent of the United
American boundary. States and the said tribes or nations other
The Indian nations had fought alongside the suitable articles shall have been agreed upon.
British in the war as their equals and were incensed (Treaty with France 1803)

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56 Governments and Treaty Making

The Treaty of Peace of 1776, the Jay Treaty of all eastern tribes to lands west of the Mississippi had
1794, and the Explanatory Note of 1796 did not end become an important political platform for presiden-
the competition and suspicion between the United tial hopeful Andrew Jackson. A few of the southern
States and England. By 1812, war had again broken states, such as Georgia, had passed state laws
out between the two powers, and again both sides assuming jurisdictional control over tribally held
sought the alliances of the Indian nations. The great lands. Now president, Jackson introduced legislation
Shawnee chief Tecumseh clearly foresaw the danger in Congress giving the tribes the choice to move
that the United States posed to Indian people and west or stay in the South and submit to the state
worked tirelessly to create a confederacy of tribes laws. The tribes and their supporters loudly
from Canada to Florida to fight with the British. A protested passage of this removal bill, pointing out
brigadier general in the British army, Tecumseh that the United States possessed no jurisdiction over
expressed disgust upon hearing of Britain’s capitula- the Indian nations and that such legislation violated
tion to the Americans two years later. previous treaties and laws recognizing Indian sover-
At the peace negotiations concluding the war, eignty and title to their lands.
England sought recognition from the United States Well known among European powers as an
of an independent Indian buffer state. In a treatise American leader with little integrity in warfare and
written before the negotiations, Nathaniel Atcheson even less honor in upholding promises, Jackson had
laid out nine points on which Great Britain should no use for the niceties of law, whether domestic or
negotiate the treaty, emphasizing that the Indian international. Jackson’s philosophy was based
nations were “independent both of us and of the entirely on necessity; whatever was necessary to
Americans” and that their independence should be expand the glory of the American republic was just.
secured. Three of the nine points dealt with the sta- Congress passed the removal bill by a mere five
tus and security of the Indian nations: a new bound- votes.
ary line for the Indian Territory; that the Americans The Cherokee Nation responded to the bill’s
not be allowed to erect forts, military posts, or other passage by filing an injunction before the U.S.
public property in Indian Territory; and that Great Supreme Court as a foreign nation. As a foreign
Britain guarantee the boundaries of the Indian state state, the tribe’s attorney, former U.S. attorney gen-
(Atcheson, 1814). eral William Wirt, argued that the State of Georgia
For months, negotiations stalled over the Amer- possessed no authority to execute “certain laws
icans’ refusal to recognize an Indian buffer state. The [that] . . . go directly to annihilate the Cherokees as a
British finally relented upon the agreement of the political society and to seize for the use of Georgia
United States in Article 9 to restore tribal rights to the lands of the nation which have been assured to
the 1811 status quo. After ratification of the Treaty of them by the United States in solemn treaties . . .”
Ghent, ending the War of 1812, both the United (Cherokee 1831). The Cherokees, Wirt stated, had
States and England negotiated new treaties with been sovereigns from time immemorial, “acknowl-
their former Indian enemies during the war, restor- edging no earthly superior.”
ing recognition of tribal rights to their prewar status. The Cherokee Nation v. Georgia case proved espe-
The War of 1812 ended the Indian nations’ abil- cially inconvenient for John Marshall. A political
ity to serve as a master player in the international opponent of Andrew Jackson, Marshall fully real-
intrigues of the East. With the East in firm control, ized that Jackson would ignore any Supreme Court
the United States turned its attention to the Mexico decision that contravened his political agenda
Gulf and Florida region, where General Andrew (Cherokee 1831). For a president to ignore a Supreme
Jackson fought against the English, the Spanish, and Court decision so early in the nation’s history would
their military allies, the Muscogee Creek Confeder- jeopardize the Court’s future role in U.S. politics, a
acy, for final control of the region. role not well articulated by the constitutional
From the British, the United States had inherited authors. Wishing to avoid a showdown with Jack-
the right to treat with and secure lands from the son, Marshall sought to have the case dismissed.
Indian nations of the Old Northwest. Over the next By cleverly employing domestic law to answer
several decades, U.S. forces solidified their control of questions of international law and manipulating the
this area by negotiating with the tribes in groups, very meaning of treaties, Marshall ruled that the
pairs, and individually. By the late 1820s, the public Cherokees had no standing to bring the case directly
clamor, especially from the southern states, to move to the Supreme Court as a foreign nation. The

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Indian Treaties as International Agreements 57

treaties signed between the Cherokee Nation and the the “same necessity and on the same principle” as
United States, Marshall argued, had placed the those treaties concluded with France (Cherokee 1831).
Cherokees under the protection of the United States.
Through this action, Marshall concluded, the Chero- The words treaty and nation are words of our
kees had given up their foreign status and had own language, selected in our diplomatic and
become “domestic, dependent nations.” legislative proceedings, by ourselves, having
In his dissent, Justice Smith Thompson refuted each a definite and well-understood meaning.
Marshall’s analysis that the Cherokees had placed We have applied them to Indians, as we have
themselves under U.S. protection. By comparing the applied them to the other nations of the earth;
sixth article of the Treaty of Hopewell with the they are applied to all in the same sense.
Cherokees in 1785 with the twenty-seventh article of (Worcester 1832)
the U.S. treaty with England in 1794, Thompson
argued that both provisions dealt with the extradi- In Cherokee Nation, Marshall had used Indian
tion of wanted criminals from Cherokee and English treaties in part to prove that Indian nations were not
territory, respectively. foreign states. In Worcester, he had applied interna-
tional legal principles to show how Cherokee treaties
The necessity for the stipulation in both cases proved Cherokee sovereignty and independence.
must be, because the process of one government Within two years, Marshall had cleverly manipu-
and jurisdiction will not run into that of lated and interpreted the role and status of Indian
another; and separate and distinct jurisdiction treaties to serve conflicting purposes—a masterful
. . . is what makes governments and nations feat not lost on future generations of American
foreign to each other in their political relations. judges.
(Cherokee 1831) The Worcester victory provided the tribes with
no practical protection. Hoping to find a new life free
The Cherokees refused to give up. The follow- of white interference, many tribes negotiated treaties
ing year, Samuel Worcester, Elizur Butler, and two with the United States to move their people west.
other missionaries deliberately broke a Georgia law The U.S. military forcibly “assisted” those individu-
requiring a state license to live on Indian lands. als and groups who were too reluctant or too slow.
Georgia officials arrested the men, who were sen- The removal of the eastern tribes slowed the govern-
tenced to four years in prison at hard labor. Once ment’s hunger for tribal lands only briefly.
again, William Wirt appeared before the Supreme Looking for new lands, the United States had
Court to argue the inapplicability of Georgia’s laws attempted on more than one occasion to purchase
over Cherokee lands. This time, Wirt based his case Texas from Mexico. In 1836, Texas declared her inde-
on the argument that the Constitution granted “the pendence from Mexico. During her nine years as an
regulation of intercourse with the Indians” exclu- independent republic, Texas concluded twelve
sively to the federal government. The government, treaties with various indigenous tribes, including the
Wirt argued, exercised this power through treaties indigenous Tonkawa, Comanche, Wichita, and
and congressional acts. Any attempts by states to Apache, as well as with immigrant bands from the
alter or void federal law violated the Constitution. Cherokee, Delaware, and Shawnee nations, fleeing
Marshall agreed with the plaintiffs, finding the white encroachment of their aboriginal lands.
Georgia laws to be an unconstitutional interference Congress annexed Texas in 1845 and a year later
with the treaties concluded between the United added the Oregon Territory. Victory in the Mexican
States and the Cherokees. To support his ruling, War added the entire Southwest in 1848. The discov-
Marshall discussed the proper legal interpretation ery of gold in California (1849) and Colorado (1858)
that should be accorded to Indian treaties. In analyz- brought waves of settlers across tribal lands in the
ing the first negotiated treaty of the United States West. Five years later, the Gadsden Purchase com-
with the Delaware Nation, Marshall found that “[in] pleted the present exterior boundaries of the United
its language and in its provisions, [the treaty] is States. In ten short years, the country’s population
formed, as near as may be, on the model of treaties increased by 32 percent and its size by 70 percent.
between the crowned heads of Europe.” The treaties Between 1830 and 1860, eight states and five territo-
concluded by the United States with the Indian ries were added to the Union. To open up this newly
tribes in general, as Marshall pointed out, arose from acquired territory to settlement, the government

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58 Governments and Treaty Making

embarked on a negotiating frenzy with tribes, secur- changes in traditional negotiation and approval pro-
ing 174 million acres of land in fifty-three treaties cedures, including prohibiting the participation of
with tribes between 1853 and 1857. Native women and demanding that tribal councils
For a period, the Civil War interrupted the west- forgo their time-consuming consensus building and
ern exodus as the North fought to preserve the provide immediate, on-site decisions. Commission-
Union. After declaring its independence from the ers were also not above appointing any group of
United States, the Confederacy quickly entered into Indians as tribal chiefs and investing them with the
treaty negotiations with the Indian nations in the authority—that is, coercing them with alcohol— to
important border regions. The politics between the sign treaties. Although treaties signed under duress,
Union and the Confederacy proved especially disas- or without the sovereign’s authority, are illegal, on
trous among the Indian nations referred to as the only a few occasions did Congress refuse to ratify
Five Civilized Tribes: the Cherokee, the Choctaw, the the Indian treaties placed before them. Living under
Chickasaw, the Creek, and the Seminole. In each of corrupt agents and with little access to food, many
these tribes, a handful of tribal citizens, primarily the tribes increasingly were forced to sign successive
wealthier mixed bloods, had adopted the southern treaties that ceded more of their lands, required their
agricultural system, which required slave labor in children to attend manual labor schools, and allotted
order to be economically efficient. Casting their lot communally held lands to individual owners.
with the Confederacy, these groups seceded from In still other instances, tribes negotiated treaties
their own tribal nations and established rebel gov- in good faith with U.S. representatives, only to find
ernments. later that Congress had refused to ratify them or had
To solidify their relationship, especially their altered their provisions without tribal approval. The
military and economic contributions, the Confeder- most egregious example involved more than twenty
acy signed approximately nine treaties with these treaties that the California tribes had negotiated with
rebel governments and several western tribes. The the federal Treaty Commission in 1851. The gold
Confederate treaties were quite liberal in the Con- rush had started, and the government directed the
federacy’s recognition of tribal authority, land, and Treaty Commission to treat with the Indians to
resources. In return, the rebel groups accepted the secure title and access to their lands. Convinced that
protection of the Confederacy but retained the the remaining lands the tribes had reserved for their
authority to make treaties with other Indian nations. use also contain gold, the California representatives
In the meantime, the de jure tribal governments, prevailed upon their colleagues to leave the treaties
arguing the principle of pacta sunt servanda (treaties unratified. For the next fifty years, the physical loca-
must be upheld), continued to support and fight for tion of these documents, now referred to as the “lost
the Union, frequently in battles against their own treaties,” was unknown. Without proof of the areas
people. After the war, the United States demanded they had ceded and those they had retained as reser-
that the Five Civilized Tribes renegotiate their vation lands, the tribes (except for those in the north-
treaties with the federal government. The resulting ern part of the state) were left dependent upon the
treaties, supposedly in retaliation for the tribes’ trea- government to provide them with a land base.
son, were actually negotiated with the southern
tribal representatives, who were far more willing to
grant away tribal rights and lands than were those The End of Treaty Making
who had fought and died for the Union. Initially responsible for enforcing the treaty-
Until the Civil War, treaty negotiations with established boundaries between Indian and white
individual tribes often followed a typical cycle. The lands, the military’s role changed from defending
earliest treaties dealt with peace, friendship, tribal lands from the encroachment of white settlers
alliances, and land cessions. As immigrants flooded to suppressing tribes and often evicting them from
to new western frontiers that encroached on tribal their own lands. As the western wars escalated, Pres-
lands, hostilities multiplied. To avoid costly battles, ident Ulysses S. Grant in 1867 appointed the Peace
the American government pressured tribes to cede Commission to study the situation. The commission
increasingly large areas of land—cessions containing reported that the western hostilities primarily
lands often already sold to settlers by eastern specu- derived from the government’s refusal to keep its
lators. As America’s strength grew and the powers treaty commitments and from its repeated demands
of tribes declined, treaty commissioners demanded for more tribal land cessions. Other government offi-

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Indian Treaties as International Agreements 59

cials, such as Commissioner of Indian Affairs Ely powerful individuals . . . I greatly fear that the
Parker, a Seneca, pointed to the treaty process as the adoption of this provision to discontinue treaty
root of the problem, arguing that Congress should making is the beginning of the end in respect to
stop making treaties with the tribes and pass legisla- Indian lands. It is the first step in a great scheme
tion to civilize them and open their lands to settle- of spoliation, in which the Indians will be
ment. plundered, corporations and individuals
Except for a few remaining Plains and South- enriched, and the American name dishonored
west tribal groups, governmental policies and in history. (McNickle 1973, 208)
actions had subdued and weakened most tribes,
lending some credence to the argument that tribes The amendment in 1871 did not end the federal
no longer possessed the political power to negotiate government’s negotiations with tribes for lands and
treaties as equals. Justice Department officials coun- other matters. In the place of treaties, the govern-
tered vigorously that treaty making remained an ment negotiated agreements, documents that were
effective tool for negotiating with tribes and main- similar to treaties in content and effect but required
tained that ending treaty making without tribal con- the approval of both congressional houses before the
sent was both illegal and dishonorable. president’s signature. By the close of the nineteenth
Whether tribes retained the capacity to negoti- century, the United States had negotiated more than
ate treaties was of less concern to most policymakers five hundred ratified and nonratified treaties with
than was the potential control that outside interests various Indian nations.
stood to gain from a change in the treaty-making The end of treaty making allowed the govern-
policy. Under the current system, the executive ment new freedom to legislate and establish policies
branch took the lead in negotiating treaties, leaving and programs designed to educate and assimilate
the Senate only with the authority to confirm or Indian people into the dominant society. Supportive
refuse the treaty. The House of Representatives, jeal- of the rider and eagerly waiting in the wings to assist
ous of the Senate’s role, was left to appropriate funds the government in their endeavors were the eastern
for decisions into which they had had little input. reformers, philanthropists, and churches. In 1874,
Which tribes were contacted, which lands were pur- Congress passed a bill requiring tribal members to
chased, and which resources were acquired led to perform “useful labor” in return for their annuities,
decisions that had immeasurable impact on the rep- even though annuities represented payments for
resentatives’ constituents and the economic fortunes lands already ceded. The following year, in a prelude
of their districts. Once again, Indian tribes became to the Dawes Act, individual Indians were encour-
unwitting pawns in a competitive power play aged to obtain land under the Homestead Act. In
among the various branches of government and offi- 1879, Congress instituted the rudiments of an Indian
cials representing competing railroad, mining, live- educational system with the establishment of the
stock, and land speculation interests, among others. Carlisle Indian School, whose intentions were
In 1871, the House of Representatives attached cogently summarized by the school’s director in tes-
the following rider to an appropriations bill: “. . . timony before Congress: “We accept the watchword,
[T]hat hereafter no Indian nation or tribe within the let us by patient effort kill the Indian in him and save
territory of the United States shall be acknowledged the man” (Gates 1885, 131).
or recognized as an independent nation, tribe, or As traditional tribal society broke down with
power, with whom the United States may contract the education of the young, the rise in power of the
by treaty” (16 Stat. 566). Senator Eugene Casserly of Indian agent, and the teaching of Christianity, the
California eloquently pinpointed the reason for the government increasingly supplanted Native prac-
rider’s passage: tices with the Anglo system. Congress authorized
Indian police forces and an Indian court of appeals.
I know what the misfortune of the tribes is. In 1886, through the passage of the Seven Major
Their misfortune is not that they are red men; Crimes Act, the federal government assumed juris-
not that they are semi-civilized, not that they diction of major crimes committed by Indians. A
are a dwindling race, not that they are a weak year later, Congress passed the most assimilative
race. Their misfortune is that they hold great piece of legislation to date, the Land in Severalty Act,
bodies of rich lands, which have aroused the or the Dawes Act, as it became known. Far surpass-
cupidity of powerful corporations and of ing any previous infringement on tribal life, the

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60 Governments and Treaty Making

Dawes Act provided for the allotment of reservation vide the government with virtually any legal angle
lands among tribal members, with individuals necessary.
receiving either 40 acres of farmland or 160 acres of The first major challenge to the U.S. assumption
grazing land. Land left after the allotment process of authority came in the 1886 U.S. v. Kagama decision
was sold to white settlers as surplus. Within less (Kagama 1886). The previous year, Congress had
than 20 years, Congress had moved from treating tacked the Seven Major Crimes Act onto an appro-
with the tribes as national entities and acknowledg- priations bill. The legislation provided the federal
ing their rights to their land and internal sovereignty government with the authority to assume criminal
to restructuring the tribes’ internal affairs and jurisdiction over Indian individuals who had com-
attempting to dissolve their reservations. mitted one of seven major crimes on Indian lands.
Tribes were not consulted about these govern- Until then, tribes had handled violations of their
mental changes and policies, and many leaders laws according to their own codes and processes. On
protested and lobbied strongly against their imposi- what basis could the federal government claim to
tion. Eventually, some tribes took their complaints have this authority? Tribes had not delegated this
to the Supreme Court, asking the Court to deter- specific authority to the federal government in any
mine on what authority the federal government jus- of their treaties.
tified its assumption of such widespread authority The government spuriously claimed that Con-
over a sovereign people. The question was not eas- gress’s authority to pass the Major Crimes Act fell
ily answered. The U.S. Constitution clearly estab- naturally under its authority to regulate commerce
lished the federal government as a government of with the tribes. The commerce clause, Justice Samuel
enumerated powers, meaning that the federal gov- F. Miller ruled, was not the source of the govern-
ernment could exercise only those powers granted ment’s authority. The government had recognized
by the Constitution. Heretofore, the federal govern- the tribes as semi-independent, “not as States, not as
ment had regulated its relationships with the Indian nations, but as separate people, with power of regu-
nations primarily through the treaty process, which lating their internal social relations and thus not
affirmed that each sovereign possessed exclusive brought into the laws of the Union or of the States
authority to make and enforce its own laws in its within whose limits they resided,” Miller acknowl-
own land. The treaties negotiated between the U.S. edged; but Congress had now decided to govern the
government and the tribes dealt with national issues tribes through federal legislation (Kagama 1886,
of trade, land, and military alliances. With few 381–382). The tribes’ dependent condition warranted
exceptions, tribes had not given the United States this change in procedure, Miller asserted. Admitting
the authority to enter their lands or to enforce their that the actions of the federal government had weak-
laws. When tribes had delegated authority to the ened the tribes, they were, nonetheless, now wards
United States, it was to improve the lives of their of the nation, and the United States had a responsi-
community. For example, Indian governments in bility to care for its wards. In a masterful and convo-
Indian Territory had for years protested to the sur- luted reinterpretation of treaty law, Miller reasoned
rounding governments that the latter’s failure to that the source of U.S. authority to care for the tribes
control lawlessness had caused the problem to spill derived from the very treaties the tribes had negoti-
into tribal lands. Tribal governments had neither the ated with the United States. The United States had
resources nor the inclination to handle what they offered its protection to tribes in their treaties. Legis-
perceived as an outside problem. Eventually, tribes lation such as the Major Crimes Act fulfilled this
gave the United States the authority to enter tribal promise of protection.
lands in pursuit of these criminals, a fact that the To conclude that Indian treaties, which tribes
courts later used to justify U.S. authority over had negotiated as protection against the federal gov-
Indian lands. ernment and unwanted governmental incursions,
For the federal government to claim individual had now become the ultimate source of the govern-
control over Indian people would require the courts ment’s authority over tribes, has to be one of the
to “domesticize” the previously international legal most tortuous reinterpretations of law yet found in
principles that had regulated the treaty relationship American history. Marshall had stressed in Worcester
between the United States and the various tribes. that Indian treaties represented the government’s
But, as John Marshall had illustrated, a little judicial acknowledgement and agreement to protect tribal
ingenuity, creativity, and manipulations could pro- self-government; they did not imply the destruction

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Indian Treaties as International Agreements 61

of the protected. After the Kagama decision, the pro- eases, famine, and cultural genocide. Against all
tections that tribes thought they had negotiated to odds, they had survived, bringing into the century
preserve were nonexistent. an understanding of their identities, their nation-
In 1903, in the Lone Wolf v. Hitchcock decision, hood, and the values their ancestors had fought to
the Supreme Court indicated the extent to which the protect.
government was prepared to divest tribes of their Over the next hundred years, the U.S. govern-
guaranteed treaty provisions (Lone Wolf 1903). Arti- ment continued its unrelenting attempt to convince
cle 12 of the Treaty of Medicine Lodge stipulated that indigenous peoples to forgo their cultures, wisdom,
Congress could not dispose of certain reservation and communal identities by embracing and disap-
lands without the consent of three-fourths of the pearing into the American maelstrom. By doing so,
adult males. Unable to secure the necessary votes, Indian people would become materially and socially
the government took the land and sold it. Lone Wolf, self-sufficient, as had the millions of immigrants
on behalf of himself and other members of the who had accepted American ideals. As had their
Kiowa, Comanche, and Apache tribes, charged the ancestors before them, Indian people in large mea-
government with disposing of tribal property in vio- sure refused. The general U.S. population and its
lation of the Treaty of Medicine Lodge and the pro- public officials possessed little comprehension and
tections afforded by the Fifth Amendment of the U.S. even less patience for this refusal, imposing assimila-
Constitution. tionist and terminationist policies on Indian people
In an unbelievable decision, the Court reasoned in various forms without their consent throughout
that the tribes had misconstrued their treaty and had the twentieth century.
overlooked their dependent status and the govern- In the eighteenth and nineteenth centuries, the
ment’s role as their guardian. To hold Congress to treaty process had managed the relationships of the
the treaty would limit the government’s authority to United States with the Indian nations. In the twenti-
care for and protect the Indians. The Court conceded eth century, the very existence of Indian treaties pro-
that previous courts had described tribal land rights vided an unbreachable psychological, legal, sym-
as sacred as fee simple, but these cases had involved bolic, and historical link between the United States
protecting tribal lands from the states and individu- and its indigenous peoples, between the past and the
als. The treaties could not constrain the federal gov- future, and between the legal and truly moral.
ernment because of the federal government’s As the preceding discussion illustrated, Con-
responsibility to care for its wards. Citing an earlier gress and the courts can and have legally reinter-
case, the Court ruled that the federal government preted, misinterpreted, and ignored Indian treaty
was limited only by those “. . . considerations of jus- rights and histories to meet broader domestic poli-
tice as would control a Christian people in their cies and objectives. American constitutional law is
treatment of an ignorant and dependent race” replete with Supreme Court decisions, such as Chero-
(Beecher 1877). Within less than a hundred years, the kee Nation v. Georgia, U.S v. Kagama, and Lone Wolf,
U.S. courts had legally manipulated or “domesti- that deftly manipulated the existence, status, and
cized” international legal principles that recognized protections afforded by treaties to protect Indian
and protected international independence, sover- nations and individuals.
eignty, and treaties into domestic sources of author- As discussed previously, tribes, especially in
ity that allowed the federal government unlimited later years, were often at a considerable disadvantage
control over Indian people. during the treaty negotiation process. Federal nego-
tiators either purposefully or ignorantly negotiated
binding agreements with individuals not authorized
Indian Treaties in the to represent the tribe, at times resorting to bribery or
Twentieth Century to intoxicating pliant tribal members as “chiefs.”
The United States closed the nineteenth century hav- Because agreements were written in English, tribes
ing abrogated treaties, forcibly taken Indian lands were often totally dependent upon the facility and
and lives, and destroyed tribal cultures through the honor of the individual translator.
brute force and legal manipulations. Indian commu- In some instances, government officials threat-
nities embarked on the twentieth century greatly ened to withhold rations or annuities owed by
diminished in numbers, land, and resources and earlier treaties until the tribe agreed to the provi-
having experienced one hundred years of war, dis- sions of a new treaty. Other tribal leaders found

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62 Governments and Treaty Making

themselves with the choice of agreeing to a treaty or restore tribal sovereignty and tribal governmental
facing the threat of war or starvation. In other powers, several cases pointed to tribal treaties as
instances, tribes had negotiated and upheld their proof of inherent tribal powers. In three important
agreements in good faith, only to find years later cases decided between 1959 and 1973, the Supreme
that the Senate had struck out provisions, added Court ruled in favor of Navajo sovereignty based on
new ones, or refused to ratify the treaty and com- the protections inherent in their 1868 treaty with the
pensate the tribe for their land cessions. In at least United States.
thirteen cases, when notified that Congress had In the Williams v. Lee case in 1959, the Court held
altered the treaty, tribes rejected it upon its return that the Navajo treaty of 1868 protected the Navajos’
for approval. authority to exercise control over internal issues—in
To assist in adjudicating a particularly complex this instance, the tribal courts’ exclusive jurisdiction
legal area, the courts frequently develop a series of over a non-Indian’s collection of a debt from an
relevant principles or tests to guide judicial analysis. Indian on the reservation (Williams 1959). In the War-
To compensate for these inequalities in the negotia- ren Trading Post v. Arizona Tax Commission case, the
tion process and for the lack of precise language, and treaty of 1868 also prevented the State of Arizona
to ensure a balanced interpretation of the rights at from collecting state taxes from non-Indians whose
issue, the Supreme Court has established several businesses lay within reservation boundaries (War-
principles or canons of construction for use in adju- ren 1965). In the McClanahan v. Arizona State Tax Com-
dicating Indian treaty issues. The canons include mission case of 1973, noting that Indian sovereignty
these principles: that ambiguities in treaties must be provided “a backdrop” against which to interpret
resolved in favor of the tribes; that Indian treaties Indian treaties and federal policies, the Court ruled
must be interpreted as the Indians would have that Arizona could not collect state taxes from Indi-
understood them; that Indian treaties must be con- ans whose “income was derived from reservation
strued liberally in favor of the Indians; and that sources” (McClanahan 1973).
reserved rights must be explicitly extinguished by The Supreme Court also invoked the existence
later treaties or congressional action. The following and protection of Indian treaties in two of its most
cases exemplify these standards: Carpenter v. Shaw, resounding victories for tribal sovereignty. In 1974,
280 U.S. 363, 367 (1930); DeCoteau v. District Court, in Morton v. Mancari, the Supreme Court ruled that
420 U.S. 425, 447 (1975); Bryan v. Itasca County, Min- the Bureau of Indian Affairs policy of providing spe-
nesota, 426 U.S. 373, 392 (1976); Jones v. Meehan, 175 cial preference for Indians did not constitute racial
U.S. 1, 10 (1899); U.S. v. Shoshone Tribe, 304 U.S. 111, discrimination in violation of the Equal Employment
116 (1938); Choctaw Nation v. Oklahoma, 397 U.S. 620, Opportunity Act (Morton 1974). Federal laws regard-
631 (1970); Tulee v. Washington, 315 U.S. 681, 684–685 ing Indians were passed to fulfill the government’s
(1942); Washington v. Washington State Commercial unique political relationship with tribes. This rela-
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690 tionship, the Court emphasized, was illustrated in
(1979); and County of Oneida v. Oneida Indian Nation, part by its “history of treaties” with tribes.
470 U.S. 226, 247 (1985). Each tribe, tribal history, and Four years later, in United States v. Wheeler, the
negotiated treaty is unique, the Supreme Court Supreme Court considered whether the U.S. Consti-
emphasized in the Minnesota v. Mille Lacs decision tution’s bar against double jeopardy precluded a
(Minnesota 1999). The proper interpretation of a par- Navajo man’s trial in federal court on a charge aris-
ticular treaty requires an in-depth historical investi- ing out of the same offense for which the Navajo
gation of the era in which the tribe negotiated the tribal court had convicted him (U.S. 1978). The fed-
treaty, including but not limited to an examination of eral courts were not prohibited from trying the indi-
government policy, archival records of congressional vidual, the Court concluded. The Navajo had not
debates and treaty negotiations, and tribal oral and given up their “jurisdiction to charge, try, and pun-
written histories. ish members of the Tribe for violations of tribal law”
Not surprisingly, a review of the Court’s appli- in either their 1849 or their 1868 treaty with the
cation of the canons of construction in Indian treaty United States. Therefore, the man had broken the
cases over the last half century or so reveals a rather laws of two sovereigns and could be tried by both
uneven and judicious use of the canons, depending sovereigns.
upon the importance of the issue in question. During The federal court’s willingness to employ its
the 1970s, a time of stated congressional policy to canons of construction in Indian treaty cases has

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Indian Treaties as International Agreements 63

proven essential in protecting tribal hunting and strongly worded dissent to the decision, Justice
fishing rights. Among many tribes, hunting and fish- Hugo Black wrote, “I regret that this Court is to be
ing represented far more than economic subsistence. that governmental agency that breaks faith with this
Hunting and fishing symbolized and taught cultural dependent people. Great nations, like great men,
values and one’s responsibilities and orientation to should keep their word” (Federal Power Commission
one’s surroundings. Over time, outside develop- 1960). This ruling was also relevant in the DeCoteau
ments and populations crowded out many tribal v. District County Court for the Tenth Judicial District
peoples, preventing them from pursuing the hunting case (DeCoteau 1975).
and fishing rights guaranteed by their ancestors. In Two weeks before the Supreme Court handed
the 1960s through the early 1990s, tribal peoples down the Wheeler decision, which emphasized that
moved to reclaim these treaty rights, first through tribes possessed inherent sovereign powers predat-
fish-ins and protests and later through court battles. ing those of the United States, the Supreme Court
Non-Indian fishing interests, representing the sport ruled in the Oliphant case that tribes did not possess
and commercial industries, responded to the tribal the authority to exercise criminal jurisdiction over
actions with harassment, violence, and lobbying non-Indians (Oliphant 1978). The case arose from the
efforts. Suquamish tribal court’s conviction of two men for
In general, courts from the Northwest to the disturbing the peace during Chief Seattle days. The
Great Lakes have concluded that tribal ancestral convictions were invalid, the men argued, as the
leaders intended to preserve tribal fishing and hunt- Suquamish possessed no jurisdiction over non-
ing rights for their descendants in the treaties they Indians. In line with previous case law and canons of
negotiated with the United States more than a hun- construction, the Court should have determined
dred years ago. In the United States v. Michigan case whether the Suquamish had forfeited their rights in
of 1979, for example, Judge Joel Fox ruled that treaties to handle criminal matters within their own
Michigan tribes preserved their right to fish in Lake lands, or whether Congress had expressly removed
Michigan in their treaties of 1836 and 1855 (U.S. such authority from the tribes. After a selected
1981). Tribes in Wisconsin and Minnesota won simi- review of congressional legislation from 1834 to the
lar lawsuits based on interpretation of historic present, the Court rationalized that Congress had
treaties (Menominee 1968; Minnesota 1999). In a series intended to preempt the field. Previously, the Court
of northwest fishing cases involving the Treaty of had operated on the principle that tribes retained
Medicine Creek of 1854 (Treaty with the Nisqually, their inherent governing rights and rights to
Puyallup, Etc.), the courts interpreted “The right of resources unless specifically removed or limited
taking fish, at all usual and accustomed grounds and through treaties or by Congress. The new rule now
stations, is further secured to said Indians in com- read that tribes could not legislate on matters limited
mon with all citizens of the Territory . . .” to allow by treaties or statutes (old test) or in areas that con-
treaty tribes with 50 percent of the allowable salmon flicted with the overriding interest of the United
catch (Washington 1979). States as the superior sovereign. Exactly what was
The courts have failed to apply their canons of considered to be in the “interest of the overriding
construction consistently when interpreting Indian sovereign” the Court did not say, beyond stating that
treaty provisions. Perhaps not surprisingly, the the federal government had a responsibility to pro-
majority of these cases have occurred when such tect its (non-Indian) citizens.
applications would result in Indian ownership of The 1981 Montana v. United States decision, like
former lands now needed for economic develop- the Lone Wolf decision in 1903, illustrated the
ment and the finding that tribes retained jurisdiction Supreme Court’s willingness to mangle previously
to handle non-Indian criminal activities within tribal established Indian law and tests. This case involved
lands. For example, in the Federal Power Commission the right of the Crow Nation to regulate hunting
v. Tuscarora Indian Nation case of 1960, the Supreme and fishing rights within their reservation bound-
Court, by ignoring its own canons of construction aries, in this instance the regulation of non-Indians
and reinterpreting history, concluded that three on nonmember lands. As the Crow Nation’s attor-
treaties negotiated in the 1700s to protect tribal lands ney argued, without the right to control all hunting
conveniently did not include Tuscarora lands. The and fishing within reservation boundaries, it was
ruling allowed for the submersion of traditional Tus- impossible to establish and administer legitimate
carora lands beneath a lucrative energy project. In a conservation measures. Furthermore, the Crow had

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64 Governments and Treaty Making

never given up their authority to regulate any American State Papers, Foreign Affairs, vol. 1.
aspect of their reservation hunting and fishing 1832–1861. Washington, DC: Gales and Seaton.
rights, and no federal legislation had extinguished Article Six, Treaties between the United States and the
Several Indian Tribes from 1778 to 1837. 1975.
their right.
Millwood, New York: Kraus Reprint.
The Crow Nation, the Court ruled, did not pos- Atcheson, N. 1814. A Compressed View of the Points to
sess the right to regulate non-Indians fishing and be Discussed in Treating with the United States of
hunting on non-Indian lands within the reservation America. London: Rie.
boundaries. To support this tenuous claim, the jus- Beecher v. Wetherby, 95 U.S. 517 (1877).
tices relied on their interpretation of the Treaty of Bodin, J., 1576. The Six Books of the Commonwealth.
Fort Laramie (Treaty with the Sioux, Etc.) of 1851, Abridged and translated by M. J. Tooley.
Oxford, England: Basil Blackwell, 1955.
finding that nowhere was it “suggested that Con-
Boyd, Julian P., ed. 1938. Indian Treaties Printed by
gress intended to grant authority to the Crow Tribe Benjamin Franklin, 1738–1762. Philadelphia:
to regulate hunting and fishing by nonmembers on Historical Society of Pennsylvania.
nonmember lands” (Montana 1981). The Court could Caughey, John W. 1938. McGillivray of the Creeks.
only arrive at such an interpretation by completely Norman: University of Oklahoma Press.
ignoring its own tests that required Indian treaties to Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
be interpreted as the tribes would have understood DeCoteau v. District County Court for the Tenth Judicial
them (few people envisioned in 1851 the problem of District, 420 U.S. 425 (1975).
Deloria, Vine, Jr., and Raymond J. DeMallie, eds.
whites fishing on Crow land), to contain an express
1999. Documents of American Indian Diplomacy:
extinguishment of authority, and to resolve any Treaties, Agreements, and Conventions, 1775–1979,
ambiguities in favor of the tribe. vols. 1–2). Norman: University of Oklahoma
Despite periods of egregious failures and the Press.
courts’ tendency to interpret Indian treaty rights in DePuy, H. 1917. A Bibliography of the English Colonial
line with the national political agenda and climate, Treaties with the American Indians: Including a
the United States has refused to completely abandon Synopsis of Each Treaty. New York: Lennox Club.
Federal Power Commission v. Tuscarora Indian Nation,
the guarantees and promises that it negotiated as a
362 U.S. 99, 137–138 (1960).
young nation. Even after two hundred years of con- Gates, Merrill. 1885. “Land and Law as Agents in
flictual history, the United States legally regards Educating Indians,” Journal of Social Science,
Indian treaties as the supreme law of the land. As 113–146, quote by Captain Henry Pratt.
contracts between sovereigns, the supremacy clause Grotius, H. 1925. In Livy, Book IV, in De Jure Belli Ac
of the Constitution governs the legal status of Indian Pacis Libri Tres (The Classics of International
treaties within U.S. law, mandating that Indian Law), J. Scott (ed.). Oxford: Clarendon Press.
Holmes, Jack. 1969. Spanish Treaties with West
treaties possess the same effect and force of federal
Florida Indians, 1784–1802. Florida Historical
law and supersede state law. States did not—and Society, 48 (140–154).
still do not—possess the requisite sovereignty to Liverani, Mario. 1980. International Relations in the
enter into treaty relationships. Ancient Near East, 1600–1100 BC. New York:
Congress and the courts today recognize tribes Palgrave MacMillan.
as domestic dependent nations possessing a govern- Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L.
ment-to-government relationship with the federal Ed. 299 (1903).
government—a status supported by the continuing McClanahan v. Arizona State Tax Commission, 411 U.S.
164 (1973).
viability of Indian treaties. The treaties and agree-
McNickle, D’Arcy. 1973. Native American Tribalism.
ments negotiated by Indian nations with the United London: Oxford University Press.
States will continue to play a critical role in the Menominee Tribe of Indians v. United States, 391 U.S.
recognition of tribal sovereignty and in the protec- 404 (1968).
tion of Indian lands and resources. Meyers, D. P. 1957. “The Names and Scopes of
Sharon O’Brien Treaties.” American Journal of International Law:
51, 579.
References and Further Reading Minnesota v. Mille Lacs Band of Chippewa Indians. 526
“Act Ending Treaty Making,” March 3, 1871, U.S. U.S. 172 (1999).
Statutes at Large, 16: 566. Montana v. United States, 450 U.S. 544 (1981).

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Indian Treaties as International Agreements 65

Morton v. Mancari, 417 U.S. 535 (1974). Treaty of May 24, 1835, 7 Stat. 450.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Treaty of August 24, 1835, 7 Stat. 47.
Prucha, Francis Paul. 1994. American Indian Treaties: Treaty of May 26, 1837, 7 Stat. 533.
The History of a Political Anomaly. Berkeley, Los Treaty of March 12, 1858, 12 Stat. 997.
Angeles, and London: University of California Treaty of June 19, 1859, 12 Stat. 1037.
Press. Treaty of March 6, 1861, 12 Stat. 1171.
Ralston, Hayden. 1920. The Senate and Treaties, Treaty with France for the Cession of Louisiana, April
1789–1817. New York: Macmillan. 30, 1803, 8 Stat. 200, TS 86.
Respecting the Liberty to Pass and Repass the Borders and U.S. v. Kagama, 118 U.S. 375 (1886).
to Carry on Trade and Commerce. 1974. U.S. v. Michigan, 653 F. 2d277 (6th Cir. 1981).
Explanatory Article to the 3rd Article of the U.S. v. Wheeler, 435 U.S. 313 (1978).
Treaty of November 19, 1794. Van Loon, L.G. 1968. “Tawagonshi: Beginning of
Toscano, M. 1966. The History of Treaties and the Treaty Era.” Indian Historian, June, 22–26.
International Politics. Baltimore: The Johns Vattel, E. 1916. The Law of Nations, The Classics of
Hopkins Press. International Law. Ed. J. Scott. Washington,
Treaty of October 22, 1784, with the Six Nations, 7 DC: Carnegie Institution of Washington.
Stat. 15. Vitoria, Francisco de. 1917. De Indis and De Jure Belli
Treaty of January 21, 1785, with the Wyandots and Reflectiones. Sec. 2, titles 6 & 7, “On the
others, 7 Stat. 16. Indians and on the Law of War,” ed. Ernest
Treaty of November 28, 1785, 7 Stat. 18. Nys, trans. John Pawley Bate. New York:
Treaty of January 21, 1785, 7 Stat. 16. Oceana, 1964. Originally published
Treaty of November 28, 1785, 7 Stat. 18. Washington, DC: Carnegie Institution.
Treaty of January 9, 1789, with Wyandot, 7 Stat. 28. Warren Trading Post v. Arizona Tax Commission, 380
Treaty of August 7, 1790, 7 Stat. 35. U.S. 685 (1965).
Treaty of July 2, 1791, 7 Stat. 39. Washington v. Washington State Commercial
Treaty of June 16, 1802, 7 Stat. 68. Passenger Fishing Vessel Association, 443 U.S.
Treaty of November 10, 1808, 7 Stat. 107. 658 (1979).
Treaty of July 22, 1814, with Wyandot, 7 Stat. 118. Williams v. Lee, 358 U.S. 217 (1959).
Treaty of August 19, 1825, 7 Stat. 272. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

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Historical
Periods

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Colonial and Early Treaties, 1775–1829

F
or the first fifty years of the republic, the within and on the borders of the thirteen colonies.

F
United States, in its relations with the Indian In writing the Declaration of Independence, the
tribes within its borders, focused its diplo- committee of Thomas Jefferson, Benjamin Franklin,
matic and political energies on ending wars and John Adams, Robert Livingston, and Roger Sher-
establishing peaceful relations, controlling trade, man made special note of the tribal threats to colo-
asserting supremacy, extending its criminal and nial survival: “He [King George III] has excited
civil jurisdiction, and securing titles to the tribal domestic insurrections amongst us, and has
lands. To achieve these goals, the United States endeavoured to bring on the inhabitants of our
entered into 159 treaties with Indian tribes between frontiers, the merciless Indian Savages, whose
1775 and 1829 (Deloria and DeMallie 1999, 183–190). known rule of warfare, is an undistinguished
In doing so, it adopted the precedent established destruction of all ages, sexes and conditions.”
nearly two hundred years earlier by European sov- Although they grossly overstated the situation and
ereigns—that of negotiating treaties with Native expressed it in polemical terms, the Revolutionary
polities. Under the prevailing international law, the War leaders had good reason for concern. At the
land belonged to the sovereign in whose name it end of the French and Indian War (1754–1763), a
was discovered, but the Indian tribes that occupied conflict in which most of the Indian tribes border-
the land had a perpetual right of use. This right ing the colonies had joined the French, England had
could be extinguished only by abandonment, by a established a policy restricting colonial settlement
“just war,” or by purchase, the last being the most on Indian lands. The restrictions began in 1763,
common means. These legal principles were enunci- when the Crown issued a proclamation prohibiting
ated by the Spanish jurist Francisco de Vitoria in settlement west of the Appalachian Mountains. The
1532 and quickly became the law of nations. superintendents for Indian affairs, John Stuart for
The treaties negotiated in the half century cov- the southern district and Sir William Johnson for
ered by this essay may be divided into three time the northern district, negotiated treaties with the
periods: the united colonies during the Revolution- various Indian tribes in 1767 and 1768 that estab-
ary War, the Continental Congress under the Articles lished the boundary line envisioned in the Procla-
of Confederation, and the United States under the mation of 1763. That line ran from a few miles west
Constitution. The last time period began with the of Fort Stanwix (in present-day Rome, New York)
United States engaged simultaneously in war and in in the north to the Gulf coast of Florida. There were
diplomacy: war in the Northwest Territory, war and to be no colonial settlements west of this line. Addi-
diplomacy in the South, and diplomacy in western tionally, the colonies were required to pay a series
New York, all resulting in peace treaties and land of taxes to simultaneously recoup the Crown’s costs
cessions. The same pattern was followed during the incurred during the French and Indian War and
first three decades of the nineteenth century: wage maintain the Crown’s continuing protection against
war when necessary, treat with tribes as policy Indian attacks—a requirement to which the
required, and, above all, secure land cessions either colonists vehemently and, in some instances vio-
as war reparations or sales. The Northwest and the lently, objected.
South remained foci of federal attention, and It is not surprising that with few exceptions—
although western New York ceased to be a concern, most notably the Oneida and the Tuscarora, who
it was replaced after 1803 with the lands west of the supported the colonial cause—the Indian tribes west
Mississippi River. of the property line of 1768 were more sympathetic
to the English than to the colonials. Some twenty
years before, the English had represented the princi-
The United Colonies pal threat to their lands, and consequently an
during the Revolutionary War alliance with the French served their collective pur-
From the first skirmish at Concord and Lexington pose. Now roles had changed. England appeared
in April 1775, Revolutionary War leaders were ready to protect Indian lands against American
aware of the threats posed by the Indian tribes incursions.

69
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70 Historical Periods

In this situation, the most the American officials [the tribes] Promised to be true and faithful Subjects”
could hope for was that the tribes would remain (ibid., 78, 79).
neutral and perhaps give some quiet support. To The informality of treaties ended with the
accomplish this goal, the Continental Congress Delaware treaty in 1778. The treaty contains seven
entered into seven treaties or agreements with the articles: a mutual forgiveness of all prior offenses; a
following tribes: guarantee of peace, friendship, and mutual assis-
tance in cases of war; free passage of American
Six Nations, Delaware, and Shawnee (1775) troops across Delaware territory to attack English
Seneca, Cayuga, Nanticoke, and Conoy (1776) forts; and fair, impartial trials of Delawares and
Passamaquoddy, Penobscot, and Malecite Americans who violated either nation’s laws. In
(1777) addition, the United States agreed to appoint an
Winnebago (1778) agent to regulate trade; guaranteed Delaware terri-
Fox (1778) tory in perpetuity; and, most interestingly, invited
Delaware (1778) the Delaware Nation “to join the present confedera-
Cherokee (1779) tion, and to form a state whereof the Delaware
(Deloria and DeMallie 1999, 183; ASP 1832, nation shall be the head, and have a representation
61:1, 1). in Congress” (Kappler 1904, 3; 7 Stat. 13). The Chero-
kee treaty of 1779 contains all the provisions found
Except for the Delaware and Cherokee treaties, in the Delaware treaty, with the exception of the
these were informal agreements. Although the statehood offer. Both treaties sought to ally the tribes
treaties in 1775 and 1776 differ in details, they have to the United States in exchange for protections
in common two elements: an explanation or justifica- against the two major causes of enmity: dishonesty
tion of the rebellion against English authority and an in trade and incursions on tribal lands.
appeal for tribal neutrality concerning the conflict
between England and the colonies. Witness the
speech of John Walker at the Treaty with the Six The Continental Congress under
Nations, Delaware, Shawnee and Ottawa in October the Articles of Confederation
1775. He pressed the tribes to remain neutral and to Although written in 1777, the Articles of Confedera-
recognize that they and the United Colonies had a tion did not become officially operational until 1781.
common destiny. The sticking point was the insistence by the “land-
less” states—those without claims to western lands—
Brothers we wish to Cultivate so strict a that the “landed” states surrender their claims to the
Friendship with you as that your Enemies United States. Maryland, in particular, held up accep-
shou’d be Considered as ours, and our tance of the articles until Virginia agreed to surrender
Enemies as yours. . . . Brothers you have no its claims to the Northwest Territory (the area north
doubt heard of the dispute between us and of the Ohio River, now the states of Ohio, Indian,
some of our Fathers evil Counsellors beyond Michigan, and Illinois) and what is now Kentucky.
the Great Water, in this dispute your Interest is Other states with western claims were New York,
Involved with ours so far as this, that in Case Massachusetts, Georgia, and North Carolina. Many
those People with whom we are Contending of the claims overlapped, and all were for lands
shou’d Subdue us, your Lands your Trade your occupied by a large number of Indian tribes. Further
Liberty and all that is dear to you must fall complicating matters, the Articles of Confederation
with us, for if they wou’d Distroy our flesh gave the United States sole control over war and
and Spill our Blood which is the same with peace but a vague mandate over Indian affairs.
theirs; what can you who are no way related According to Article IX, the Continental Congress
to or Connected with them Expect? (Deloria had the “sole and exclusive right and power of . . .
and DeMallie 1999, 55) regulating trade and managing all affairs with the
Indians, not members of any of the states, provided
The treaties with the Winnebago and the Fox, that the legislative right of any state within its own
negotiated by Colonel George Rogers Clark in limits be not infringed or violated. . . .” Because a
August 1778, tied the tribes to an “Alliance and number of states contained sizable areas occupied by
Friendship with the United States of America and Indian tribes, and because these states were anxious

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Colonial and Early Treaties, 1775–1829 71

to gain title to these lands, Article IX preserved the demand a cession of land as reparations for the costs
rights of states to negotiate with the Indian tribes, of the war. The latter demand deviated radically
even at the risk of a general war and in contraven- from Washington’s recommendation to use the long-
tion of the interests of the United States. established practice of purchasing land from Indian
But the states were not the only ones to be con- tribes or, more precisely, purchasing the Indian
cerned about the stability of relations between the tribes’ right of use of the land. However, during the
United States and the Indian tribes. Congress also 1780s the United States faced an enormous debt and
faced that concern, which for them had its roots in no means to repay it, as well as a vengeful, restive
the Treaty of Paris. Although the Treaty of Paris (Sep- population intent on settling on the very lands under
tember 3, 1783) ended the Revolutionary War and tribal control. From Congress’s point of view, the
established the Mississippi River as the western solution to these two problems was to exact retribu-
boundary of the United States as far south as tion from the hostile Indian tribes via the relinquish-
Florida, it made no provision for ending the wars ment of land.
with the Indian tribes that had joined the English, Between 1784 and 1786, the United States nego-
and therefore it furthered the possibility of unstable tiated the following six treaties with hostile tribes:
relations with those tribes. As a result, it was clear to
the Continental Congress that peace treaties with the Treaty at Fort Stanwix with the Seneca,
hostile tribes were a necessity. Mohawk, Onondaga, and Cayuga {1784)
The crucial question was, What should be the Treaty at Fort McIntosh with the Wyandot,
terms of any peace treaties with the warring tribes? Delaware, Chippewa, and Ottawa (1785)
General George Washington provided an answer in Treaty at Hopewell, South Carolina, with the
a September 1783 letter written to James Duane, a Cherokee (1785)
delegate to the Continental Congress. Washington Treaty at Hopewell, South Carolina, with the
expressed concern that, in the absence of a quick res- Choctaw (1786)
olution of hostilities, the Indian lands would “be Treaty at Hopewell, South Carolina, with the
over run with Land Jobbers, Speculators, and Mo- Chickasaw (1786)
noplisers or even with scatter’d settlers” against the Treaty at Fort Finney at the mouth of the
best interest of the United States. Normalizing rela- Great Miami River with the Shawnee
tions with the tribes was imperative in order to pre- (1786)
vent a situation that Washington believed to be
“pregnant of disputes both with the Savages, and These treaties have five provisions in common.
among ourselves . . .” (Prucha 1994, 1). To this end, First, they required the tribes to surrender all prison-
Washington felt that the tribes should be informed of ers and, in the case of the treaties at Fort Stanwix,
the provisions of the Treaty of Paris, should be Fort McIntosh, and Fort Finney, required the Indian
required to return all prisoners, should agree to a tribes to provide tribal leaders as hostages to assure
boundary line between the United States and them- the prompt prisoner return. The three treaties at
selves, and should grant to the United States a ces- Hopewell added the return of property, including
sion of land. Washington believed that the United slaves. Second, the United States offered the Indian
States, for its part, should give assurances that it tribes peace and protection, which served to end
would “endeavour to restrain our People from Hunt- hostilities and to provide the United States with sole
ing or Settling” in Indian country as well as prevent control over the Indian tribes. Third, the United
dishonesty in trade. Washington concluded his letter States defined the territorial boundaries of the
by recommending that the lands ceded to the United Indian tribes, reserving land for Indians’ sole use
States be purchased instead of seized by force (ibid.). and occupancy and taking ownership of the remain-
“In a word there is nothing to be obtained by an der. Fourth, the United States agreed that crimes
Indian War but the Soil they live on and this can be committed by Americans on the tribal lands would
had by purchase at less expence, and without that be punished. Fifth, the tribes were to surrender to
bloodshed . . .” (ibid., 2). the United States any Indian who committed crimes
In the winter of 1784, the Continental Congress against Americans.
completed its plans for ending hostilities with the A number of treaties contained additional pro-
Indian tribes still at war with the United States. To visions specific to the situations between the United
each tribe, the Congress would offer peace and States and particular tribes. In the Fort Stanwix

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72 Historical Periods

treaty, the United States guaranteed the lands of the system of governance for the Northwest Territory.
Oneida and Tuscarora in appreciation of their loyalty The Continental Congress’s intention to survey and
to the colonial cause during the Revolutionary War. sell the land in the Northwest Territory, combined
Similarly, the Fort McIntosh treaty restored tribal with the increasingly frequent incursions on Indian
rights and property to those Delaware who had lands by hunters and squatters, made war inevitable.
remained loyal to the United States. The Hopewell Within a year of the passage of the Land Ordi-
treaties with the Cherokee, Choctaw, and Chickasaw nance of 1785, the United States began surveying
contained guarantees of fair trade. Additionally, the and settling the Northwest Territory. To make the
Cherokee were offered the opportunity to send a point that the United States considered the land its
representative to the Continental Congress. property and would countenance no interference
Upon hearing the terms announced by the con- with its settlement, General George Rogers Clark
gressional negotiators at the treaty conferences, the ordered attacks on Shawnee villages in 1786.
Indian negotiators were nearly unanimous in their Although the attacks resulted in the unremitting
opposition. They argued that they had not waged hostility of the Shawnee, they had a salutary effect
war against the United States without provocation, from the American point of view: they served to sep-
they had never sued for peace, and they were not arate those Indian tribes closer to American terri-
empowered to grant the cessions demanded. How- tory—Seneca, Delaware, Wyandot, and Chippewa—
ever, they argued without success. These treaties from those more remote and thus less subject to U.S.
were not made at arm’s length: the terms were dic- intimidation—Shawnee, Miami, Wea, Piankashaw,
tated by the U.S. commissioners, and the tribes were Potawatomi, and Kickapoo.
told to accept them or face annihilation. The words Exacerbating the Continental Congress’s prob-
of Richard Butler, who negotiated the treaty with the lems concerning Indian relations were the actions of
Shawnee at Fort Finney on behalf of the United some of the states with sizable Indian populations.
States, illustrated the Continental Congress’s atti- Georgia held treaties with the Cherokee and the
tude: “The destruction of your women and children, Creek in 1783 and again with the Creek in 1785 and
or their future happiness, depends on your present 1786. Massachusetts negotiated its claims to what is
choice. Peace or war is in your power; make your now the western part of New York State with the Six
choice like men, and judge for yourselves” (Downes Nations in 1788. But New York State was by far the
1977, 297). most aggressive in securing Indian lands. It negoti-
Once the Indian delegates returned home and ated with the Oneida for a large tract of tribal land in
their tribal leaders and members heard the terms 1785, a year after federal guarantees to that land, and
imposed, the Indian tribes rejected the terms. As the again with the Oneida in 1788, as well as with the
news of the high-handed way the Indian tribes at the Onondaga in the same year and with the Cayuga the
treaty conferences had been treated, other Indian following year. New York went so far as to send
tribes, not party to the treaties but neighbors and individuals to disrupt the federal Treaty of Fort Stan-
allies of those who were, joined in opposition. The wix (Treaty with the Six Nations) in 1784, although
result was a loosely formed confederacy of Indian this effort failed to prevent the signing of the treaty.
tribes in the Northwest Territory, the area north of In the final days of the Continental Congress,
the Ohio River to the Mississippi River and includ- the United States sought to reaffirm its treaties made
ing Ohio, Indiana, southern Illinois, Michigan, and a between 1784 and 1786 with the hostile tribes by
small piece of western Pennsylvania. signing two treaties at Fort Harmar in January 1789.
Although mindful of the rejection and opposi- The first, with the Wyandot, Delaware, Ottawa,
tion by the tribes, the Continental Congress pro- Chippewa, Potawatomi, and Sac, repeated the terms
ceeded to legislate for the area as though its title of the treaties of Fort McIntosh (Treaty with the
were clear and peace prevailed. In 1785, it passed Wyandot, Etc., 1785) and Fort Finney (1786; Kappler
“An Ordinance for ascertaining the mode of dispos- 1904), but in a shift of policy, the United States made
ing of lands in the Western Territory,” which pro- a payment to the Indian tribes of $6,000 in goods for
vided for the survey of the lands between the Ohio the land taken (Kappler 1904, 16–18). The second
River and the Great Lakes and their subsequent divi- treaty, with the Six Nations of New York, repeated
sion into six-mile-square townships. The land was the terms of the Treaty of Fort Stanwix (1784), and it,
then to be sold to settlers. In 1787, the Congress too, contained a payment in goods for land: $3,000.
passed the Northwest Ordinance, providing for a As the Mohawk under Joseph Brant were not in

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Colonial and Early Treaties, 1775–1829 73

attendance at the treaty, they were denied any pay- manner as any other treaty entered into by the
ment. The terms of both treaties were dictated by United States. Once negotiated, they were submitted
Arthur St. Clair, governor of the Northwest Territory, to the Senate for its advice and consent, which was
who hoped that the treaties would end the warfare. given by a two-thirds vote, and then proclaimed by
However, most of the tribes in the Northwest Terri- the president.
tory had refused to attend; of those who were pres- The Department of War, headed by Secretary
ent, none were represented by their principal chiefs. Henry Knox, was charged with the implementation
The treaties were repudiated by the tribes, making of Indian policy. Knox, like Washington, believed it
war in the Northwest Territory inevitable. was futile to attempt to take Indian land by force. He
advised the president that the best policy was one in
which the United States recognized the tribes’ rights
Treaties under the to the lands they possess and offered to purchase by
United States Constitution treaty what they were willing to sell. He was certain
The United States under the Constitution began that the tribes would be willing to sell sections of
functioning in April 1789, beset with a myriad of land at reasonable cost. He explained, “As the settle-
Indian problems, including an inevitable war with ments of the whites shall approach near to the
the tribes in the Northwest Territory. However, Indian boundaries established by treaties, the game
unlike the Articles of Confederation, the Constitu- will be diminished, and the lands being valuable to
tion made the United States supreme in the conduct the Indians only as hunting grounds, they will be
of Indian affairs. The Congress has the sole power willing to sell further tracts for small considerations”
“To regulate Commerce . . . with the Indian Tribes” (ASP 1832–61:1, 13–14).
(Article I, Section 8) and to declare war (Article I, But first the nation had to deal with a war in the
Section 8). It granted to the president the power to Northwest Territory, hostilities in the South, and a
make treaties with the advice and consent of the Sen- possible war with tribes of the Six Nations in west-
ate (Article II, Section 2). ern New York. To meet these threats, the War
The first treaties to reach the president and the Department formulated a threefold approach: First,
Senate were the two negotiated at Fort Harmar. They the United States would wage war on the tribes
raised a serious question regarding the handling of along the Wabash River, principally the Miami. Sec-
Indian treaties. Did Article II, Section 2 of the Consti- ond, the United States would carry on negotiations
tution apply to treaties between the United States with the southern Indian tribes, particularly the
and Indian tribes? Washington proceeded on the Cherokee, the Chickasaw, and the Creek. Third, the
assumption that a treaty with an Indian tribe should president, with the approval of the Senate, would
be treated as any other treaty would under the Con- send a commissioner to settle differences with the
stitution. He sent the two treaties, supporting docu- Six Nations, principally the Seneca, who were angry
ments, and a report from Secretary Henry Knox to over the forced land concessions at Fort Stanwix and
the Senate in May 1789. The following month, the Fort Harmar.
Senate appointed a three-member committee to The United States made two unsuccessful
review the treaty and accompanying materials. The attempts to defeat the Indian tribes north of the
Senate was uncertain of the status of Indian treaties; Ohio. In the summer of 1790, General Josiah Harmar
after much consideration, the Senate advised Wash- led an army of 1,453 militia and regulars against the
ington to carry out the treaty (Prucha 1994, 70–71). Miami, and after destroying a number of villages,
This did not satisfy Washington, and he so the army was defeated. The following year, territo-
informed the Senate. He pointed out that treaties rial governor Arthur St. Clair assembled an army of
made by subordinates were not official until ratified 2,770 and marched into Miami country. There he met
by the sovereign “and I am inclined to think it would an army consisting of Miami, Wyandot, Chippewa,
be adviseable to observe it in the conduct of our and Kickapoo, led by the Miami chief Little Turtle.
treaties with Indians . . . It strikes me that this point The results were disastrous for the United States. Of
should be well considered and settled, so that our the 1,400 U.S. troops who participated in the battle,
national proceedings in this respect may become more than 900 were killed or wounded. The rest
uniform, and be directed by fixed, and stable princi- retreated to the safety of Fort Hamilton (now Cleve-
ples” (as quoted in Prucha 1994, 72). The Senate land, Ohio) (Mahon 1988, 150; Downes 1977,
agreed; Indian treaties were to be treated in the same 317–318). After the battle, General Anthony Wayne

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74 Historical Periods

replaced St. Clair. Wayne was ordered to raise and step of appointing Timothy Pickering, with the con-
train an army to defeat the tribes in the Northwest sent of the Senate, as Indian commissioner to the
Territory. New York tribes. Between 1790 and 1794, Pickering
The problems with the Six Nations in New York held a series of conferences with the Six Nations to
and the tribes in the South were largely the result of keep them neutral and to resolve outstanding differ-
white settlers committing crimes against Indians ences.
within tribal territories, dishonest traders who While the United States pursued its military
cheated the Indians with shoddy goods and exorbi- efforts in the Northwest and its diplomatic efforts
tant prices, and states and citizens who forced or with the Six Nations, it had to contend with frequent
tricked the Indian tribes into selling their lands at border depredations in the South. With its limited
paltry rates. To remedy these conditions, Congress in resources, the United States could not engage in a
1790 passed the first of a series of laws known as the war against the Choctaw, Cherokee, Chickasaw, and
Indian Trade and Intercourse Acts. These acts sought Creeks, nor could it afford to have these tribes join
to regulate trade by licensing the traders who with the Indian tribes north of the Ohio. In response
entered Indian country, making individuals who to the dilemma, Washington chose a diplomatic
commit crimes in Indian country subject to state or approach, holding a number of treaty conferences
territorial laws and punishments, and prohibiting with the southern Indian tribes. In 1790 and 1791, the
the sale of Indian lands to individuals and to states United States negotiated treaties with the Creeks and
“whether having the right of pre-emption to such Cherokee respectively. The two treaties contained
lands or not, unless the same shall be made and duly essentially the same provisions: the tribes recognized
executed at some public treaty, held under the U.S. protection and “no other sovereign whosoever”;
authority of the United States” (1 Stat. 137–138). The the tribes would return all prisoners; their bound-
last provision applied only to the original thirteen aries would be surveyed and guaranteed by the
states, which were acknowledged to have retained United States; the tribes were free to punish any citi-
the preemption right, that is, the right to purchase zen or inhabitant of the United States who settled on
the Indian lands within their borders; however, the their land; hunting and entry on tribal land without
United States determined when that right could be a passport by citizens or inhabitants of the United
exercised, when Indian title could be extinguished. States were forbidden; fugitives from justice were to
The Act of 1790 was temporary, set to expire in June be returned to the United States, and individuals
1793, but Congress renewed and strengthened the committing crimes on Indian land were to be pun-
act in March of that year. (Congress continued to ished according to the laws of the state or territory
renew and revise the act in three-year increments where the Indian lands were located; both sides
until 1802, when it was made permanent. Although would refrain from retaliation; the tribes would give
the act was modified throughout the period, the notice of any threats against the United States; and
essential provision prohibiting individuals from pur- lastly, so that the Indian tribes “may be led to a
chasing Indian land and the restrictions on states greater degree of civilization, and to become herds-
doing the same remained.) men and cultivators, instead of remaining in a state
President George Washington affirmed the pro- of hunters,” the United States would supply domes-
tection of Indian land guaranteed by the Indian ticated animals and farm implements. Although
Trade and Intercourse Act to the Seneca chiefs Corn- these treaties did little to quell the border depreda-
planter, Half-Town, and Great-Tree in December tions, their provisions set the tone, format, and lan-
1790. Responding to a litany of complaints, Wash- guage for subsequent treaties.
ington informed them of the provisions of the act The year 1794 proved to be a turning point in
and added, “Here, then, is the security for the Indian-United States relations and territorial policy.
remainder of your lands. No State, nor person, can The previous summer, a U.S. delegation had met
purchase your lands, unless at some public treaty, with the Ohio tribes to negotiate a settlement but
held under the authority of the United States. The had no success. The tribes insisted that the United
General Government will never consent to your States accept the Ohio River as the boundary
being defrauded, but it will protect you in all your between the parties, which the U.S. commissioners
just rights” (ASP 1832–61:1, 142). In addition to the rejected. Negotiations having failed, Knox directed
assurances Washington gave to the Six Nations that General Anthony Wayne to begin an offensive to
their lands would be protected, he took the further secure the Ohio valley. Wayne waited until the sum-

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Colonial and Early Treaties, 1775–1829 75

mer of 1794 to begin his campaign, and after build- petuity. In exchange, the Seneca, Onondaga, Cayuga,
ing a string of forts on the Maumee and the Great and Oneida surrendered all claims to any other land
Miami rivers, he moved to meet the Indian army, within the United States. The treaty was signed by
which numbered some two thousand. Wayne pro- Timothy Pickering for the United States and by fifty-
ceeded deliberately toward the Indian camp at nine “sachems and war chiefs” of the Six Nations,
Fallen Timbers, which was protected by an English including Cornplanter, Red Jacket, Farmer’s Brother,
post, Fort Miami. The tribes had been led to believe the Seneca prophet Handsome Lake, and the Stock-
by English officials in Canada that the English bridge chief Hendrick Aupaumut.
would support them militarily and that war between Although both sides were aware of Wayne’s vic-
the United States and England was imminent. But tory at Fallen Timbers months before, this did not
when Wayne, whose forces outnumbered the Indi- greatly affect the final results. The principal U.S.
ans, attacked, the English took no action. Although interest in the treaty was to gain an unconditional
the Battle of Fallen Timbers, on August 20, did not surrender of any Six Nations claims to land in the
destroy the tribes’ ability to fight, the failure of the Ohio Valley. Pickering justified the return of the
English to help resulted in dissolution of the Indian Seneca lands in western New York, saying that the
fighting force. Wayne went on to destroy Indian vil- United States never had a right to the land because
lages and crops unopposed. The war in Northwest the preemption right belonged to Massachusetts, the
Territory was over, but the United States had yet to lands lay within the boundaries of New York State,
negotiate a settlement of all grievances with the Six and the Seneca would never have agreed to the
Nations of New York, the tribes in the South, and treaty without the return.
those it had defeated in the Ohio valley. There were other problems concerning tribal
The United States began the process of settling land and New York and Massachusetts claims to be
tribal grievances even before the commencement of resolved, and they presented some knotty legal and
the offensive in the Northwest. In June 1794, the political issues. The Indian Trade and Intercourse acts
United States negotiated a treaty with the Cherokee made provision for the original thirteen states and
at Philadelphia, Pennsylvania, affirming the bound- Vermont and Maine, which had been parts of original
aries and other provisions of the treaties of 1785 and states, to treat for land with tribes within their
1791 and granting the Cherokee annually “goods boundaries. There were two restrictions on the states:
suitable for their use” worth $5,000 “in lieu of all for- they could only negotiate at a federally held treaty at
mer sums” (Kappler 1904, 26). Two years later, the which a U.S. commissioner was present, and they
United States made a similar treaty with the Creek; could only negotiate the price to be paid to the tribe
they confirmed the boundary provision of the treaty that held the right of use. New York State, under the
of 1790 and the boundaries set by the treaties with leadership of Governor George Clinton, aggressively
the Chickasaw, the Cherokee, and the Choctaw sought the purchase of tribal lands and in 1795 nego-
(1785–1786). In return, the United States made a one- tiated land sales with the Oneida, the Cayuga, and
time payment of $6,000 in goods to the Creek. the Onondaga, much to the consternation of Secre-
The efforts of the federal government to prevent tary of War Timothy Pickering. John Jay succeeded
the Six Nations of New York from joining the Ohio Clinton as governor of New York in 1795, and he
tribes had been largely successful. By the fall of 1794, chose to comply with the Indian Trade and Inter-
Timothy Pickering was ready to settle their griev- course Act, resulting in three federally held treaties.
ances, having met in council with the Indian leaders The first of these was a treaty in 1796 with the Seven
and heard their complaints during the preceding Nations of Canada: Caughnawaga and St. Regis
three years. He called for a treaty council at (Mohawk), Lake of Two Mountains (Nippising, Iro-
Canandaigua, New York, which lasted some two quois, and Algonquin), St. Francis (Sokoki Abe-
months and ended in November. The treaty naki), Becancour (Eastern Abenaki), Oswegatchie
acknowledged the lands of the Oneida, the (Onondaga, Oneida, and Cayuga), and Lorette
Onondaga, and the Cayuga in New York State to be (Huron). By this treaty, the Seven Nations surren-
theirs; nullified the land cession of the Treaty of Fort dered all their claims to land in New York, except for
Stanwix, returning to the Seneca the land taken, what is now the St. Regis Reservation in upstate New
except for a four-mile strip along the east bank of the York along the St. Lawrence River, for “the sum of
Niagara River from Lake Ontario to Lake Erie; and one thousand two hundred and thirty-three pounds
granted the Six Nations an annuity of $4,500 in per- six shillings and eight-pence, lawful money” of New

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76 Historical Periods

York State and an annuity of 213 pounds, 6 shillings, Two additional transactions to which a U.S.
and 8 pence. A year later, under the leadership of Indian commission was present require mention. In
Joseph Brant and John Deserontyon, the Mohawks 1823, the owners of the preemption right purchased
surrendered their tribal claims in New York for from the Seneca a tract of land for $4,286, and in 1826
$1,600. New York State negotiated treaties under fed- the Seneca sold to the same group a second tract of
eral auspices with the Oneida in 1798 and 1802, 86,887 acres for $48,260. Neither sale was ratified by
although the latter treaty was never ratified by the the Senate or proclaimed by the president.
Senate or proclaimed by President Jefferson. Returning to the Northwest Territory, the Treaty
Finally, in 1802 the United States held two of Greenville, which ended the war in that region,
treaties with the Seneca. These were unusual in that was signed on August 3, 1795, by General Anthony
they were negotiated for the benefit of individuals, Wayne and chiefs of the Wyandot, Delaware,
in apparent violation of the Indian Trade and Inter- Shawnee, Ottawa, Chippewa, Kickapoo, Miami
course Acts, which contained an absolute prohibi- (including the Piankashaw, Wea, and Eel River
tion against individuals purchasing Indian land. The bands), Kickapoo, and Kaskaskia. In all, sixty-nine
Seneca lands were a unique case. They were the sub- chiefs incribed their marks on the treaty, including
ject of nearly 150 years of dispute over who held the Little Turtle, the great Miami chief, and Blue Jacket, a
preemption right, Massachusetts or New York. chief of the Shawnee. The treaty was similar in form
Massachusetts claimed the right from a grant by to those that had preceded it: it declared the parties
King James I to the Plymouth Company in 1621 to all to be at peace; required that prisoners be exchanged
the land, from sea to sea, between the 40th and 48th and that the United States hold ten Indian chiefs
parallels north. New York based its claim to the hostage until the exchange was completed; included
Seneca lands on a grant from King Charles II to his a major cession of land north of the Ohio River, plus
brother James II, Duke of York. The dispute lingered specific sessions for forts, trading posts, portages,
until 1786, when representatives of the two states and so forth; and obligated the tribes to warn the
met in Hartford, Connecticut, and agreed to a com- United States of any hostile intent by others. In
promise that gave preemption to Massachusetts and exchange, the United States gave the tribes $20,000
jurisdiction to New York. Massachusetts then sold its in goods and a perpetual annuity of $9,500 to be
preemption right to the 6 million acres of Seneca divided among them. The tribes were empowered to
land to private speculators, who in 1788 purchased expel illegal settlers; trade would be opened with the
from the Seneca 2.6 million acres for $5,000 and an United States, retaliation restrained, and all former
annuity of $500 (New York State Assembly Docu- treaties voided.
ment 51 1889:16–18).
The owners of the preemption were unable to
convince the Seneca to sell any more of their remain- Treaties and National
ing 3.4 million acres until 1797. In that year, Robert Territorial Expansion, 1800–1829
Morris, acting as agent for the owners, met with the Four policy goals defined treaty making during the
Seneca under the authority of a U.S. Indian commis- first decades of the nineteenth century: land acquisi-
sioner and negotiated the Treaty of Big Tree, tion, changing tribes to agrarian-based economies,
whereby the Seneca sold some 3.2 million acres for managing trade, and securing and maintaining
$100,000 in Bank of the United States stock, reserv- peaceful relations. First and foremost was the acqui-
ing for themselves approximately 200,000 acres on sition of land to satisfy the flood of immigrants and
nine reservations in western New York State (ibid., Americans moving westward. This meant the sur-
131–134). In 1802, the Seneca agreed to exchange render of large sections of tribal land upon which
with owners of the preemption forty-two square the tribes depended for subsistence. To compensate
miles of land of their Cattaraugus Reservation for an for the land losses, the United States sought to con-
equal amount along Cattaraugus Creek. In a sepa- vince the tribes to give up hunting and adopt Euro-
rate treaty negotiated at the same convention, the pean American farming and, by providing funds for
Seneca sold Little Beard’s reservation of two square schools, to adopt American ways. To supply the
miles for $1,200. These treaties were signed by the tribes with products they could not raise or manu-
most prominent men in the Seneca Nation, including facture, the United States proposed to establish trad-
Cornplanter, Farmer’s Brother, Red Jacket, and ing posts, sometime called factories, on the dimin-
Handsome Lake. ished tribal lands. This would have the salutary

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Colonial and Early Treaties, 1775–1829 77

effect of reducing complaints from tribes about the provisions of the Indian Trade and Intercourse Acts.
unfair practices of individual traders and would The act of 1802 contained a description of the bound-
keep out any foreign influences potentially threaten- ary between Indian country and the United States,
ing to the United States. It would, in addition, pro- continued the prohibitions against settlement on
vide the federal government with information con- Indian land, provided for the punishment of crimes
cerning tribal affairs, invaluable for treaty committed in Indian country, required the issuance
negotiations. Finally, the treaties would establish of passports to enter Indian country and licenses to
and confirm peace and commit the tribes to recog- trade, prohibited the sale of alcohol, and authorized
nize the United States as their sole protector. This the president “in order to promote civilization
was of particular importance because Spain, France, among the friendly Indian tribes, and to secure the
and England possessed land on the nation’s borders continuance of their friendship, . . . to cause them to
and, through trade and alliances, had great influ- be furnished with useful domestic animals, and
ence with many of the tribes east of the Mississippi implements of husbandry, and with goods and
River. money, as he shall judge proper . . .” (2 Stat.
The problem of foreign involvement in what the 139–146).
federal government considered internal national Achieving what had emerged as national
issues became particularly acute in 1802, when Presi- policy—the acquisition of tribal land without resort-
dent Thomas Jefferson learned of Spain’s secret ing to conquest—depended on convincing the tribes
transfer of the Louisiana Territory to Napoleon. to change their lifestyles; to accomplish this, the
However, the threat of a French occupation of New tribes would have to abandon hunting and adopt
Orleans, and thus control of the Mississippi River, agriculture. “The extensive forests necessary in the
was removed when the United States in 1803 pur- hunting life will then become useless,” Jefferson
chased France’s preemption right west of the Missis- wrote to Congress in 1803, “and they will see advan-
sippi River, an area of some 828,000 square miles. tage in exchanging them for means of improving
That left Spain in control of Florida, and the English their farms and of increasing their domestic com-
along the nation’s northern border. forts.” Jefferson saw that federal government trading
Although President Jefferson was initially con- posts were an essential part of national policy
cerned that the purchase was unconstitutional, in the (Prucha 2000, 21). Thus, trade provisions were incor-
end pragmatic factors overcame philosophical ones, porated in many of the subsequent treaties.
and Jefferson embraced the purchase. The United
States had nearly doubled its size and brought The South
within its boundaries a then-unknown number of Between 1801 and 1829, the United States made
tribes, yet it had not cleared its title to the area it had thirty-nine treaties with the Chickasaw, Choctaw,
secured from England in 1783 nor settled its rela- Creek, Cherokee, and Florida tribes. These treaties
tions with the tribes that occupied these lands. Jeffer- extinguished Indian title to all of the land east of the
son recognized that the tribes east of the Mississippi Mississippi River from the Ohio River to the Gulf of
River were growing ever more opposed to selling Mexico, except for specific reservations of land for
any of their land, while at the same time the tribal use and occupancy. The first two treaties were
demands for land were increasing exponentially. The with the Chickasaw and the Choctaw in 1801. Col-
dilemma for the national government was how to lectively, they gave the United States permission to
gain title without provoking another series of Indian build a road across tribal territory from Tennessee to
wars. “Natchez in the Mississippi Territory.” These treaties
Jefferson made no departure from the Indian cut a road diagonally from the northeast to the
policy established during Washington’s administra- southwest across the tribal territories. In addition,
tion. Congress had enacted the Indian Trade and the Choctaw treaty included a provision for the re-
Intercourse Act in 1790 and had renewed and modi- marking of the boundary lines set by the English
fied the act in 1793, 1796, and 1799. In the 1796 before the Revolutionary War and a relinquishment
renewal of the act, Congress established a system of of land east of the Cumberland Mountains (Royce
government-owned trading posts “for the purpose 1900, Pl. LXII).
of carrying on a liberal trade with the several Indian For their cessions, the Chickasaw received $700
nations, within the limits of the United States” (1 in goods, and the Choctaw received $2,000 in goods
Stat. 452). In 1802, Congress made permanent the (Kappler 1904:2, 41–43). In 1805, the Cherokee

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78 Historical Periods

agreed to allow a road to run through their territory On the other side of the coin, because of “an
to connect Knoxville, Tennessee, with New Orleans. unprovoked, inhuman, and sanguinary war, waged
The tribe was paid $1,600 (ibid., 61). by the hostile Creeks against the United States”
Having gained rights-of-way to the Mississippi (Kappler 1904:2, 77), the Creek were forced by the
River across tribal lands, the United States set out to treaty of 1814 to surrender more than twenty million
secure the intervening land. This involved land in acres in Georgia and Alabama (Prucha 1994, 11). The
four states—Tennessee, Alabama, Georgia, and treaty referred to the Creek war of 1813–1814, fought
South Carolina—and in the Territory of Mississippi. against the United States by an Upper Towns band
The western part of Tennessee belonged to the of the tribe. It took a combined force of American,
Chickasaw and the Cherokee tribes. The United Cherokee, Choctaw, and Lower Creeks to defeat the
States title to Chickasaw land was cleared by three Upper Creeks and end the war. No compensation
treaties in 1805, 1816, and 1818; Cherokee land was was granted to the Creek tribe in this treaty, even
purchased in 1805, 1806, and 1819. though a part of the tribe had remained loyal to the
The Choctaw land was located in Alabama and United States and assisted in the defeat of their fel-
Mississippi. By treaties in 1802, 1803, 1805, 1816, and low tribesmen.
1820, the Choctaw surrendered their claims in the Although the majority of the treaties negotiated
two states. In 1814, the Creek sold their land in with the southern tribes represented the sale of ever-
Alabama. Most of the remaining Creek land was diminishing tribal lands, several made after the
located in Georgia. To clear title to this land, the Treaty of Ghent in 1814, which ended the War of
United States negotiated seven treaties with the 1812, provided for the exchange of land east of the
Creek for land in Georgia: 1802, 1805, 1818, two in Mississippi River for land in the Louisiana Territory.
1821, 1826, and 1827. The Cherokee also occupied This possibility, a land exchange instead of a sale
land in Georgia, which they sold in 1804 and 1817. In and reservation, had been foreseen by President Jef-
1816, they also sold a part of their territory in South ferson in 1803 and had been incorporated into law
Carolina. For their land cessions east of the Missis- the following year. In 1804, Congress passed legisla-
sippi River, the four tribes received the following tion establishing a system of governance for the
compensation: the Cherokee, $209,500 and $8,000 in Louisiana Territory. A provision in the act authorized
perpetual annuities; the Chickasaw, $449,815; the the president “to stipulate with any Indian tribes
Choctaw, $282,000 and $9,000 in perpetual annuities; owning lands on the East side of the Mississippi, and
the Creek, $1,427,000 and $23,000 in perpetual annu- residing thereon, for an exchange of lands the prop-
ities (Kappler 1904, 2). Included in these totals were erty of the united States, on the West side of the Mis-
funds set aside for the construction and operation of sissippi, in case the said tribe shall remove and settle
schools for tribal children. thereon . . .” (2 Stat. 283).
Not all of the money stipulated to be paid by the The Cherokee treaty of 1817 was the first to con-
United States went to the benefit of the tribes. The tain a provision for a land exchange. In exchange for
Choctaw’s $50,000 went to cover money owed to surrendering land in Georgia, those who chose to
traders; $250,000 of the Creek funds were earmarked emigrate were given an equal number of acres in the
for a similar purpose. The Cherokee were paid newly formed Territory of Arkansas. The head of
$43,760 to indemnify individual tribal members for each emigrating household was given a rifle and
damage caused by the U.S. Army and citizens. Pay- ammunition, a brass kettle or beaver trap, and a
ments were made to specific individuals in the blanket for each member of the family. Those who
tribes, very often chiefs or prominent warriors. remained east of the Mississippi River and desired to
George Guess (Sequoyah) received $500 in the become citizens were to receive 160 acres of tribal
Cherokee treaty of 1828 “for the great benefits he has land. The annuities due the Cherokee tribe would be
conferred upon the Cherokee people, in the benefi- divided proportionately between the two groups. A
cial results which they have are now experiencing treaty with the Choctaws in 1820 contains similar
from the use of the Alphabet discovered by him” provisions: land in the Arkansas Territory for their
(Kappler 1904:2, 207). The same treaty allocated land in Mississippi, equipment for the emigrating
$1,000 for the purchase of a printing press. The families, and citizenship and land for those remain-
Choctaw chiefs and warriors received $14,972 for the ing in the state of Mississippi.
assistance against the Upper Creeks in the Pensacola These treaties ran into immediate opposition
campaign during the War of 1812. from settlers in the Arkansas Territory, so much so

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Colonial and Early Treaties, 1775–1829 79

that they required renegotiation. In 1825, the ing it a capital crime to sell land. Their attitudes fur-
Choctaw were forced to surrender a large portion of ther hardened following the Creek war, largely
the land they had acquired in Arkansas and to because of sales made by the Lower Creeks. Finally,
accept a cash payment and an annuity of $6,000 in 1825, when the leader of the Lower Town Creek,
instead. In 1828, the Cherokee found themselves in William McIntosh, a supporter of removal and active
the same situation. They were forced to exchange opponent of the Upper Town Creek, signed the
their seven million acres in Arkansas for an equal treaty of 1825, the Upper Creeks killed him for ced-
amount of land west of the Mississippi River. The ing Creek land.
treaty described their title in the following terms: Nonetheless, by 1829 much of the tribal land of
the Cherokee, Chickasaw, Choctaw, Creek, and
Whereas, it being the anxious desire of the Florida tribes had been lost, and many of the tribal
Government of the United States to secure to members had moved across the Mississippi River.
the Cherokee nation of Indians, as well those More importantly, tribal governments had been
now living within the limits of the Territory of damaged by factional disputes that, in the cases of
Arkansas, as those of their friends and the Cherokee and Creek, had led to a prolonged and
brothers who reside in States East of the at times violent struggle.
Mississippi, and who may wish to join their
brothers of the West, a permanent home, and The Northwest and Louisiana Territories
which shall, under the most solemn guarantee The United States followed the same policy objec-
of the United States, be, and remain, theirs tives and negotiating procedures with the tribes in
forever—a home that shall never, in all future the Northwest Territory that it had followed with the
time, be embarrassed by having extended southern tribes. However, the problems of dealing
around it the lines, or placed over it the with the Northwest tribes were much more compli-
jurisdiction of a Territory or State . . . (Kappler cated and convoluted than in the South. In the
1904:2, 206; emphasis in original) Northwest, the United States found multiple tribal
claims of ownership to the same lands and a contin-
In addition to the land guaranteed to the tribe, uing and growing resentment against the United
the United States granted the Cherokee “a free and States among members of the affected tribes. Tribal
unmolested use of all the Country lying West of the feelings were fed by the land forfeited by the tribes
Western boundary” of their reservation, which in at the Treaty of Greenville in 1795 (Treaty with the
1828 meant all of Oklahoma. Wyandot, Etc.) and by the waves of settlers who
Florida remained under Spanish control until showed little concern for the boundaries between
1819, when the United States completed its pur- Indian land and that belonging to the United States.
chase. General Andrew Jackson, one of the principal To be fair, not all the fault lay with the settlers.
negotiators of treaties with the southern tribes, had Although the United States had gained title to a siz-
invaded the territory in 1818, precipitating the First able area in the Northwest Territory, the boundaries
Seminole War. Although that action caused a diplo- of the land cession were not well defined, which led
matic flap, it allowed the U.S. negotiator, John inevitably to disputes. The United States endeavored
Quincy Adams, to pressure Spain to sell its preemp- to remedy this in 1803 by entering into a treaty with
tion right to the land. In 1823, the United States nine tribes—Delaware, Shawnee, Potawatomi,
forced the weakened Florida tribes to sign a treaty Miami, Eel River, Wea, Kickapoo, Piankashaw, and
whereby they surrendered all the territory, except Kaskaskia—to define the boundary (Kappler 1904:2,
for a small reservation, for $6,000 worth of “imple- 49), but by then settlements had been established on
ments of husbandry, and stock of cattle and hogs” tribal lands, necessitating new concessions by the
and a $5,000 annuity for twenty years (Kappler tribes.
1904:2, 141). During the first decade of the nineteenth cen-
It should not be assumed that these land trans- tury, the United States entered into a series of treaties
actions were accomplished with the full agreement with individual tribes and groups of tribes covering
of the tribes involved; quite the contrary. The Chero- millions of acres of land in Ohio, Indiana, Michigan,
kee tribe split over the provision for removal in the and Illinois. The provisions of these treaties were
treaty of 1817. The National Council of the Creek, led essentially the same: a land cession in exchange for
by the Upper Creeks, had passed a law in 1811 mak- cash or goods and/or an annuity, generally for a

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80 Historical Periods

specified number of years. A treaty with the Fox, Iowa, Winnebago, Kansas, and Winnebago,
Kaskaskia, “originally called the Kaskaskia, joined the English. All would face U.S. negotiators at
Mitchigamia, Cahokia and Tamaroi,” in 1803 pro- war’s end.
claimed that, because these tribes “from a variety of The first signs of the impending conflict
unfortunate circumstances . . . are reduced to a very occurred in 1810 with skirmishes between the two
small number,” the tribe could no longer use its sides. The following year, General William Henry
extensive territory and therefore “do relinquish and Harrison marched against Prophetstown, Ten-
cede to the United States all the lands in the Illinois skatawa’s village on Tippecanoe Creek. Ten-
Territory.” The tribe reserved but 1,630 acres for its skatawa’s force came out to meet Harrison’s, and
own use. For this sale, the tribe had its annuity although the results were inconclusive, the Prophet
increased to $1,000, and because a majority of the lost support among his Shawnee followers. In 1812,
tribal members were Catholics, the United States the English declared war on the United States and
agreed to pay $100 to the Catholic priest for seven openly joined Tecumseh. Hostilities continued, cul-
years (Kappler 1904:2, 49–50). In 1809, the United minating in the Battle of the Thames in Ontario,
States signed four treaties; the first, with the Canada, in the summer of 1813, where Tecumseh’s
Delaware, Potawatomi, Miami, and Eel River Miami, forces and their English allies were defeated by the
gave the United States a large cession in Indiana. U.S. forces, and Tecumseh was killed.
What was unique about this treaty was that a por- With the death of Tecumseh, Indian resistance in
tion of the promised annuity depended upon indi- the Northwest collapsed, but there remained the war
vidual treaties with two tribes that were not parties with England, which continued for another year. The
to the original treaty, namely the Wea and the Kick- Treaty of Ghent, signed in December 1814, ended the
apoo. They signed separate treaties agreeing to the war between the United States and England. By its
terms of the treaty of 1809. terms, the United States agreed to make peace with
Although the language of these treaties and the warring tribes and to restore to them “all the pos-
those in the South suggests that they were the prod- sessions, rights, and privileges” they had possessed
uct of arms-length agreements, that the U.S. negotia- in 1811 before the start of hostilities.
tors were sensitive to the needs and interests of their In 1815, President James Madison appointed
tribal counterparts, nothing could be farther from commissioners to end hostilities with the tribes in
the truth. From the first opening session of a treaty the Northwest and Louisiana Territory. In all, the
council, the pressure brought to bear on the tribal commissioners negotiated twenty treaties with
negotiators was unremitting. If the presence of U.S. twenty-two tribes on both sides of the Mississippi
troops at the treaty council and the veiled threats of between 1815 and 1817. These treaties, although they
the U.S. negotiators did not result in the desired land varied slightly in detail, generally speaking con-
cessions, often tribal negotiators were bribed. It is no tained clauses that established “perpetual peace and
wonder that by 1810 the tribes in the Northwest friendship” between the parties, recognized past
were preparing for war. As early as 1805, two treaties signed by the parties, forgave injuries com-
Shawnee leaders were advocating a return to the mitted by the parties, and returned any prisoners.
ways of their forefathers. Led by Tenskatawa (the The treaties of peace and friendship were but a
Prophet) and his brother Tecumseh and supported prelude to an intensive period of land acquisition.
by the English in Canada, some of the tribes in the The concerns of the United States were threefold: to
Northwest had organized to oppose the United complete the acquisition of the land in the North-
States. Tecumseh’s movement split the tribes; those west, including Wisconsin and the Upper Peninsula
who supported Tecumseh in whole or part were of Michigan; to secure title to land along the west
mainly the Shawnee at Prophetstown and the Kick- side of the Mississippi River; and to establish rela-
apoo, Ottawa, Chippewa, and Piankashaw; those tions and supremacy over the tribes farther west. To
who joined the Americans included the Wyandot, accomplish the first objective, the federal govern-
Sandusky, Seneca, Delaware, Sac, and the main body ment made seventeen treaties between 1818 and
of the Shawnee. The Miami, one of the most power- 1829 (see Table 1). By these treaties, the United States
ful tribes, remained neutral despite attacks on its vil- secured most of the Indian title in the area, with the
lages by the Americans. In addition, the tribes far- exception of Wisconsin. The nineteen treaties made
ther west, which included the Sioux, Menominee, with the tribes to the west of the Mississippi River

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Colonial and Early Treaties, 1775–1829 81

secured for the nation control of the Mississippi While busy with the land acquisitions just
River, land for settlement, and a place to move the described, the United States began its preparation
eastern tribes (see Table 2). for the next set of treaties in the 1820s. The first step
in the process was to secure treaties of friendship.
Again, the treaties followed a set form. The tribes
Table 1 acknowledged the supremacy of the United States
Treaties of Cession, by State (Northwest) and its exclusive right to regulate all trade. For its
part, the United States undertook to protect the
tribes. In the mid-1820s, the United States made
Number
of treaties with the Ponca, Sioux, Cheyenne, Arikara,
State Treaties Tribes Involved Ministaree, Mandan, Cree, Pawnee, and Omaha. In
Ohio 4 Potawatomi, Wyandot, Seneca
all, the United States made fifty-three treaties
(Ohio), Delaware, Shawnee, between 1818 and 1829 with the tribes in Michigan,
Ottawa, Chippewa, Wea, Miami Ohio, Indiana, Illinois, Wisconsin, and west of the
Indiana 11 Potawatomi, Wyandot, Seneca Mississippi River.
(Ohio), Delaware, Shawnee,
Ottawa, Chippewa, Wea, Miami,
Kickapoo Conclusion
Michigan 9 Potawatomi, Wyandot, Seneca In the six decades between the commencement of
(Ohio), Delaware, Shawnee, the American Revolution and the election of Andrew
Ottawa, Chippewa, Wea, Miami, Jackson as president, the United States moved its
Winnebago
borders across the continent. The policy of incremen-
Illinois 9 Sac, Chippewa, Ottawa, Peoria, tal acquisition through purchase established during
Kaskaskia, Potawatomi, Wea,
the Washington administration served the national
Delaware, Kickapoo, Winnebago
interest throughout the period. Through the treaty-
Wisconsin 5 Sac, Chippewa, Ottawa,
making process, the nation acquired millions of acres
Potawatomi, Winnebago
from Indian tribes. Besides the loss of their land, the
Note: Many of these treaties contained cessions of land in more same treaty process also resulted in the displacement
than one state.
of many of the tribes and the change of their status
from recognized, fully independent sovereignties to
what Chief Justice John Marshall would describe as
“domestic dependent nations.”
Table 2 Jack Campisi
Treaties of Cession, by State
(West of the Mississippi) References and Further Reading
American State Papers, Foreign Affairs, vol. 1.
Number 1832–1861. Washington, DC: Gales and Seaton.
of Deloria, Vine, Jr. and Raymond J. DeMallie. 1999.
State Treaties Tribes Involved Documents of American Indian Diplomacy: Treaties,
Louisiana 1 Quapaw Agreements, and Conventions, 1775–1979, vol. 1.
Norman: University of Oklahoma Press.
Arkansas 4 Quapaw, Osage Downes, Randolph C. 1977. Council Fires on the Upper
Indian Territory 3 Quapaw, Osage Ohio: A Narrative of Indian Affairs in the Upper
Ohio Valley until 1795. Pittsburgh: University of
Missouri 6 Kickapoo, Sac, Fox, Iowa, Pittsburgh Press.
Osage, Kansa, Shawnee Kappler, Charles J., ed. 1904. Indian Affairs: Laws and
Treaties, 2 vols. Washington, DC: Government
Kansas 3 Osage, Kansa, Shawnee
Printing Office.
Nebraska 6 Kansa Mahon, John K. 1988. Indian-United States Military
Situation, 1775–1848. In Handbook of North
Iowa 1 Sac, Fox
American Indians, vol. 4, History of Indian-White
Note: Many of these treaties contained cessions of land in more Relations, ed. William C. Sturtevant, 144–162.
than one state. Washington, DC: Smithsonian Institution.

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82 Historical Periods

New York (State) Legislature. Assembly. 1889. Report Royce, C. C. 1881. “Cessions of Land by Indian Tribes
of Special Committee to Investigate the Indian to the United States: Illustrated by those in the
Problem of the State of New York, Appointed by the State of Indiana.” In First Annual Report of the
Assembly of 1888. Albany, NY: Troy Press. Bureau of Ethnology to the Secretary of the
Prucha, Francis Paul, ed. 1994. American Indian Smithsonian Institution, 1879–80, 247–262.
Treaties: The History of a Political Anomaly. Washington, DC.
Berkeley and Los Angeles: University of “Treaty of Fort Finney or Treaty with the Shawnee,
California Press. January 31, 1786.” 1904. In Indian Affairs: Laws
Prucha, Francis Paul, ed. 2000. Documents of United and Treaties, vol. 2, comp. and ed. Charles J.
States Indian Policy. Lincoln: University of Kappler, 16–18. Washington, DC: Government
Nebraska Press. Printing Office.

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Indian Removal and Land Cessions,
1830–1849

T
T
he Indian removal policy implemented by the sippi will be found only in the pages of the historian
U.S. government in the early nineteenth cen- . . .” (Getches, Wilkinson, and Williams 1998, 94). A
tury resulted in dozens of land cession component of early American Indian policy, which
treaties with Indian groups east of the Mississippi began under President Washington and continued
River. Under the removal policy, treaties were nego- under his successors until President Andrew Jack-
tiated with numerous eastern tribes, including the son, was the “civilization” plan. Under this program,
Choctaw, the Chickasaw, the Cherokee, the Semi- the U.S. government urged Indian peoples to adopt
nole, the Muscogee Creek in the South, and more American notions of economy, politics, and gender
than twenty tribes in New York, the Great Lakes roles. This meant that Indians should abandon hunt-
area, and along the Mississippi River north of the ing as a source of sustenance for agriculture, espe-
Ohio River. These treaties ceded millions of acres of cially the production of such cash crops as cotton.
land to U.S. control and forced the relocation of tens Differing views about the proper use of land divided
of thousands of Indians to Indian Territory. The Indians and European Americans from the earliest
causes of the removal policy arose from many days of contact; eastern Indians pointed out that
sources, including American economic growth, the they already grew vast quantities of corn, squash,
movement of American settlers west and south, beans, pumpkins, and sunflowers. Indian men
racism toward Indians, and the assertion of states’ hunted deer and other animals to provide meat pro-
rights. Although most Americans supported Indian tein for their families’ diets and to engage in the fur
removal for one reason or another, some opposed it trade, which the U.S. government sought to manipu-
as an unjust policy. Indians responded to the call for late. Indian women farmed among the matrilineal
removal in a variety of ways; some accepted the eastern tribes, and Indian men tended to view such
apparent inevitability of removal and negotiated work as “women’s work,” contrary to American
treaties to their best possible advantage, whereas understandings of gender roles. The U.S. “civiliza-
others refused to accept removal by fighting back tion” policy sought to turn Indian men into farmers
legally and physically, staying in their homelands, and Indian women into spinners and weavers of cot-
or moving somewhere other than Indian Territory. ton, thus challenging Indian cultural concepts at a
The impact of the removal treaties was as dramatic basic level. In addition, and more to the point of land
as any other episode in the long history of Indian- cessions, the U.S. government insisted that Indians
white relations and continues to shape affairs in who no longer hunted required far less land and
Indian country and throughout the United States. thus should sell their excess acreage to the United
States to be sold, in turn, to European American set-
tlers. Indians greeted the “civilization” plan with
Origins of the Removal Policy mixed reactions. A minority of elite and well-
The U.S. government policy that removed Indian connected individuals and families in all the eastern
groups east of the Mississippi River to Indian Terri- Indian groups adapted rather easily to a market-
tory in the first half of the nineteenth century based economy resting on the production of cotton,
stemmed from many causes, but key officials had wheat, and other commodities. These people insti-
suggested the eventuality of Indian removal virtu- tuted cultural modifications such as private prop-
ally from the moment the United States became a erty, slave ownership, and constitutional govern-
country. War hero George Washington declared in ment, in accordance with broader American
1783 that “[the] gradual extension of our settlements patterns. Nevertheless, Indian groups as a whole
will as certainly cause the savage, as the wolf, to remained staunchly resistant to land cessions, thus
retire . . .” (Wallace 1993, 38). Under the new Consti- negating one of the principal desired effects of “civi-
tution, which went into effect in 1789, government lization” from the American perspective.
officials increased the push for Indian removal. In Although he did not put Indian removal into
1789, Secretary of War Henry Knox suggested the action, Thomas Jefferson was the first president to
inevitability of removal, asserting that “in a short advocate the possibility of removal. In late 1802 and
period the idea of an Indian this side of the Missis- early 1803, Jefferson wrote several letters and issued

83
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84 Historical Periods

official messages urging the creation of federally run ans. The War of 1812 essentially eliminated that
trading posts, with the intent, among other pur- threat when the United States defeated British forces
poses, of putting Indians into debt. He realized that outside New Orleans and in Canada, thus encourag-
the fur trade was a dying practice east of the Missis- ing American emigration westward, especially into
sippi River and that Indians would have to pay their the Old Northwest region of Ohio, Michigan, Wis-
debts by land cessions. Jefferson also suggested that consin, Indiana, and Illinois. With the end of the War
any Indian group offering military resistance to the of 1812, a major economic transformation began,
United States would be driven from the East. He fur- called the Market Revolution by historians, which
ther added that Indians “will in time either incorpo- encouraged Americans of all ranks to seek out profit-
rate with us as citizens of the United States, or making enterprises. That shift from a predominantly
remove beyond the Mississippi . . .” (Getches, subsistence-based lifestyle to one that sought profit
Wilkinson, and Williams 1998, 95). In July 1803, by any available means increased pressure on east-
word reached Jefferson that the purchase of the ern Indians to give up land.
Louisiana Territory from France was complete, and Economic, demographic, and local pressures for
he and other government officials recognized imme- Indian removal increased in the early nineteenth
diately that the United States now owned a vast area century. Eli Whitney’s cotton gin, perfected in 1793,
west of the Mississippi River to which Indian people and other new cotton processing machines enabled
in the East could be banished. The Louisiana Pur- the efficient processing of short-staple cotton that
chase provided the inspiration and the area for pro- grew well throughout the interior of the Deep South.
removal advocates to remove eastern Indians and to As a result, European American settlers relocated to
construct a clear-cut dividing line between Ameri- the Mississippi Territory, established in 1798 and
cans and Indians. encompassing present-day Mississippi and Ala-
The War of 1812 furthered the cause of Indian bama, to cultivate cotton. These newcomers began
removal in a number of important ways. Unified demanding access to Choctaw, Chickasaw, Creek,
eastern Indian resistance to the United States became and Cherokee lands in those areas. In Georgia, the
extremely difficult with the defeat of the pan-Indian calls for Cherokee removal reached new heights
movement led by Tecumseh and his brother Ten- when gold was discovered on Cherokee lands in the
skwatawa, the Prophet, in the Great Lakes area. late 1820s. In the north, the completion of the Erie
Never again would a multitribal force arise east of Canal in 1825 across the state of New York encour-
the Mississippi River to counter American expan- aged European American emigration to the west and
sion. In the South, Indian groups remained divided, dramatically increased pressures on Indians from
and during the War of 1812 the militant Red Stick New York to Wisconsin to move westward. Other
Creeks failed in their attempt to stem American internal improvements, such as railroads and more
expansion and American influences on their people. canals, encouraged American westward migration,
Andrew Jackson, as major general of the Tennessee resulting in rapid population growth in the newer
militia, led the U.S. and Indian forces that defeated western territories. The white population north of
the Red Sticks, who had attacked and killed some the Wabash River in Indiana, for example, exploded
four hundred Americans at Fort Mims, north of from 3,380 in 1830 to 65,897 in 1840. The short-lived
Mobile. Jackson’s forces, aided by Choctaws, Chero- Black Hawk War in 1832, in which the Sac and the
kees, and non-Red Stick Creek, defeated the Red Fox Indians fought white settlers in Indiana and
Sticks at the Battle of Horseshoe Bend on the Tal- Wisconsin, further sharpened northern voices
lapoosa River in 1814. Jackson, at the subsequent against Indians remaining in the East. The cries of
Treaty of Fort Jackson, forced all Creeks to cede settlers in the southern and other western states
about twenty-three million acres. Jackson then highlighted another major component of Indian
moved his forces south and defended New Orleans removal, the conflict between states and the federal
from British attack, earning himself national government over Indian relations and control of
celebrity. land. States demanded control over all lands within
The United States had found it difficult to their borders, while the federal government insisted
enforce its will against Indians as long as another that, according to the Constitution, it alone could
European power, especially Britain, resided in east- negotiate with Indians who maintained a treaty rela-
ern North America and maintained trade with Indi- tionship with the United States. Settlers and elected

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Indian Removal and Land Cessions, 1830–1849 85

officials in the newer western states grew increas- Pro-removal forces in America received a boost
ingly strident in their denunciation of Indians, and in 1828, when one of their own, Andrew Jackson,
violence sometimes resulted. was elected president. A former congressman, sena-
No matter how much a particular Indian group tor, and judge from Tennessee, Jackson had gained
became “civilized,” Indians encountered uncompro- fame during the War of 1812 when, as head of the
mising racism among Americans in the early nine- Tennessee militia, he led the fight against the Red
teenth century. One renown western politician, Stick Creek Indians and then won the Battle of New
Henry Clay of Kentucky, said he did not “counte- Orleans. After the War of 1812, Jackson participated
nance inhumanity towards [Indians],” but he did not in several land cession treaties with the southern
“think them, as a race, worth preserving,” because Indian groups and urged them to begin migrating
they were “essentially inferior to the Anglo-Saxon west of the Mississippi. By 1820, Jackson’s efforts
race” (Garrison 2002, 25). Among European Ameri- had opened up nearly fifty million acres for Ameri-
cans, belief in the unique manifest destiny of the can settlement by compelling southern Indians to
United States and in racial explanations for human cede parts of Georgia, Alabama, Tennessee, and Mis-
behavior became firmly entrenched in the early sissippi. In addition, Jackson led an invasion of
decades of the nineteenth century. Perhaps more than Spanish Florida in 1818 against the Seminole and the
any other American of the pre-removal generation, remaining Red Stick Creek Indians, killing several of
Lewis Cass, as governor of the Michigan Territory their chiefs and two British agents whom Jackson
from 1813 to 1831 and then as secretary of war under accused of inciting the Indians to attack Americans.
Andrew Jackson from 1831 to 1836, formulated the Jackson then captured Spanish Pensacola, and after
racist moral justification for Indian removal. Conve- Spain sold Florida to the United States in 1819, Jack-
niently ignoring the horticultural and agricultural son briefly became territorial governor of Florida in
reality lived by most eastern Indians, Cass argued 1821. By 1823, Jackson was running for president of
that land must be turned over by Indian “hunters” to the United States. He won the most votes but did not
American agriculturalists, who would make more gain the needed majority of electoral votes in the
productive use of it. Only through removal west of election of 1824, which resulted in the “corrupt bar-
the Mississippi, Cass urged, could Indian people gain” that brought John Quincy Adams to the presi-
acquire the time and space to become “civilized.” dency. Nevertheless, Jackson’s actions in Indian
Cass ridiculed those who “would give to a few naked affairs forced the hands of the Monroe (1817–1825)
and wandering savages, a perpetual title to an and Adams (1825–1829) administrations to seek vol-
immense continent,” and he insisted that “the Indi- untary removal among eastern Indians—a call that
ans shall be made to vanish before civilization, as the select groups of Indians heeded by moving west into
snow melts before the sunbeam” (Wallace 1993, 45). Arkansas, Louisiana, and even Texas (part of Spain
Ironically, Indian success under the tenets of “civi- until Mexican independence in 1821), but that most
lization” made them a greater menace to white eastern Indians ignored. In the 1828 election, Jackson
Americans. The Cherokee, who had formed a consti- and his Democrat Party won easily over Adams,
tutional government and aggressively asserted their establishing as commander-in-chief of the entire U.S.
sovereignty after the War of 1812, had moved far military the man made famous as an Indian fighter,
toward economic self-sufficiency by growing and who possessed a proven record of supporting Indian
selling cotton, further entrenching their claims to removal.
their land. Racial justifications for taking Indian land State politicians, especially in the South, saw in
thus became predominant after 1815, as white Ameri- Jackson a staunch supporter of states’ rights, and
cans greedily sought access to Indian land. Racism they responded to his election, even before Jackson
surfaced even among Americans who acted in the was inaugurated as president, by passing laws
perceived best interests of Indians. Many American extending state jurisdiction over Indian lands. Geor-
groups who sought to assist Indians, such as Protes- gia was the first state to do so; on December 20, 1828,
tant missionaries, eventually supported Indian it adopted legislation extending state jurisdiction
removal west of the Mississippi, like Cass, as a over Cherokee lands in northwest Georgia, although
method of buying time for Indians to become more the state delayed enforcement until June 1830 to give
acculturated to American customs away from the Jackson and the federal government time to support
threats of their American neighbors. their action. Alabama passed a law extending its

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86 Historical Periods

jurisdiction over Creek Indian lands in January 1829. ans of their land. The legal mechanism for removal
Mississippi passed a resolution claiming jurisdiction was in place; all that remained were treaties to be
over Choctaw and Chickasaw lands within its bor- negotiated with each tribe establishing the particu-
ders that was signed into law by the governor on lars of their deportation.
February 4, 1829. Thus, southern states enabled Jack-
son to mask Indian removal as a solution to the
emerging conflict between states’ rights and federal The Removal Treaties: The South
jurisdiction and power. In his first State of the Union Treaty with the Choctaw at Dancing
address in December 1829, Jackson urged eastern Rabbit Creek, 1830
Indians to remove west voluntarily or become sub- The first American Indians to have the Indian
ject to the laws of the states. After much debate and a Removal Act forced upon them were the Choctaw of
close vote in Congress, during which certain Whig Mississippi. Certain Choctaw leaders, notably
politicians—especially the deeply religious Senator Greenwood LeFlore, responded to Mississippi’s
Theodore Frelinghuysen of New Jersey—argued extension of state laws over Indians in February 1829
against Indian removal on moral grounds, President by attempting to negotiate a removal treaty on
Jackson signed the Indian Removal Act into law on behalf of all Choctaw before the Removal Act had
May 29, 1830. been passed by Congress. The proposed treaty con-
Jackson defended the Removal Act’s passage at tained generous compensation for the Choctaw, but
the time by emphasizing that this bill “puts an end it did not reflect the will of most Choctaw people.
to the possible danger of collision between the President Jackson forwarded the treaty to the Senate
authorities of the General and state Governments, on anyway in May 1830, but the Senate, noting signifi-
account of the Indians” (Satz 2002, 44). The act called cant Choctaw opposition to the LeFlore treaty,
on the president to negotiate removal treaties with decided not to approve it. Jackson then invited
Indian groups and to exchange lands west of the Choctaw representatives to meet him at Franklin,
Mississippi River for Indian lands in the east. In his Tennessee, to negotiate a new treaty, but they
State of the Union speech that December, Jackson refused and instead suggested a meeting within
applauded the act on humanitarian terms, stating Choctaw territory in September 1830. Secretary of
that removal at federal government expense pro- War John Eaton and former Indian agent John Cof-
vided Indians with a chance of survival and demon- fee, Andrew Jackson’s nephew by marriage, repre-
strated the “humanity and national honor” of the sented the United States at the treaty grounds at
United States in taking action to save “these people” Dancing Rabbit Creek. Eaton and Coffee, using Jack-
(Wallace 1993, 123). Jackson also insisted that the son’s rationalization, warned the approximately five
Removal Act was “so just to the States and so gener- thousand Choctaw in attendance that they could not
ous to the Indians—the Executive feels it has a right prevent the state of Mississippi from taking over
to expect the cooperation of Congress, and of all their lands and that therefore the Choctaw ought to
good and disinterested men” (Satz 2002, 44). Jackson cooperate in removal and gain terms as favorable as
attacked critics of the Removal Act and exposed the possible from the United States. The Choctaw
ethnocentric and racist essence of the new policy by remained deeply divided over removal; after two
asking, “[W]hat good man would prefer a country weeks many of them left the treaty grounds having
covered with forests and ranged by a few thousand decided not to give up their lands. American agents
savages to our extensive Republic, studded with convinced the remaining Choctaw, including the
cities, towns, and prosperous farms, embellished three leading chiefs LeFlore, Nitakechi, and Mushu-
with all the improvements which art can devise or latubbe, to sign the treaty on September 27, 1830.
industry execute, occupied by more than 12,000,000 Each of these chiefs, along with several other
happy people, and filled with all the blessings of lib- Choctaw with American connections, received per-
erty, civilization, and religion?” (Satz 2002, 44). sonal sections of land in Mississippi as a form of
Despite Jackson’s generous line of reasoning in sup- bribery to ease their resistance to removal. These
port of Indian removal, the Indian Removal Act individuals either stayed in Mississippi, as did
forced Indians to choose between removal and LeFlore, or sold their sections for profit.
retaining some autonomy, or subjection entirely to The Treaty of Dancing Rabbit Creek was ratified
the laws of the state wherein they resided. There was by the U.S. Senate on February 24, 1831. According
no doubt that the states intended to dispossess Indi- to its provisions, the Choctaw ceded all of their land

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Indian Removal and Land Cessions, 1830–1849 87

east of the Mississippi River in exchange for land, ing food and shelter, eventually attacking white set-
annuities, and other assistance on land west of the tlers and seizing crops and livestock in revenge. In
Arkansas Territory that became known as Indian 1836, Cass finally intervened, not as guarantor of
Territory. The Choctaw were to leave Mississippi Creek rights but instead to forcibly remove the
within three years. The vast majority migrated west remaining Creeks west of the Mississippi. The U.S.
under situations of near starvation; many died along military accomplished what diplomacy could not,
the way. A few hundred moved that first winter after and by 1837 almost all of the fifteen thousand or so
the treaty was signed, and the rest moved in the next Muscogee Creek had emigrated to the West.
few succeeding years. Individual Choctaw could
stay in Mississippi on specific allotted sections of Treaties with the Chickasaw, 1830 and 1832
land if they so chose, but all communally held land Chickasaw leaders also sought to acquire the best
was dissolved. William Ward, the U.S. agent terms possible after the passage of the Indian
assigned to manage the allotment process, through Removal Act. In the summer of 1830, Chickasaw rep-
fraud and incompetence did not register all of the resentatives met with U.S. delegates, including Presi-
individual claims, however, and many Choctaws dent Jackson, at Franklin, Tennessee, and a treaty
who chose to stay did not receive title to their lands was signed on August 31. The Chickasaw agreed to
and were forced to relocate anyway. As historians cede their lands east of the Mississippi River in
have noted, Choctaw who tried to remain in Missis- exchange for an equal amount of land in the West,
sippi became victims of fraud, intimidation, and but when a suitable area could not be found, this
land speculation. The early 1830s are known as the treaty became void. New negotiations for removal
“flush times” in Mississippi history, for whites were undertaken in 1832 in Chickasaw territory at
squatted on and seized Choctaw lands with no Pontotoc Creek. On October 20, a treaty was signed
regard for Indian rights or fair play. Yet a couple of that ceded Chickasaw lands to the U.S. government;
thousand Choctaw managed to stay in Mississippi the lands were to be surveyed and sold immediately,
amid discrimination and poverty and are the basis of and each adult Chickasaw was to receive a tempo-
the Mississippi Choctaw of today. rary allotment, which would also be sold and all
monies therefrom placed in a fund to cover the costs
Treaty with the Creek, 1832 of removal. Whites quickly settled on the Chickasaw
Muscogee Creek leaders responded to Alabama’s lands beginning in 1832, despite a provision of the
extension of jurisdiction over their lands by propos- treaty promising that the U.S. government would
ing that they cede lands but retain blocks of private prevent white intrusion until the Chickasaw had
reserves within Alabama under the control of indi- actually left Mississippi. A suitable new homeland in
vidual families. They took these proposals to Wash- the West was not found until January 1837, when the
ington, D.C., in March 1832. Secretary of War Lewis Chickasaw and Choctaw met at Doaksville, Choctaw
Cass disagreed with the size and number of the Nation, in Indian Territory, and the Choctaw sold the
reserves, but he reached a compromise with the western part of their new territory to the Chickasaw.
eight Muscogee Creek chiefs on March 24. The Although this agreement between the two tribes was
resulting treaty was not specifically a removal treaty, not a treaty with the United States, Jackson submit-
for even though the Creek agreed to cede all their ted it to the Senate for approval anyway, which was
lands east of the Mississippi River, they were to accomplished in February 1837. Further details
receive allotments in Alabama that could be sold or about the exact extent of territory and rights granted
retained under Creek ownership. By April 2, the U.S. the Chickasaw were decided in two additional
Senate had unanimously ratified the treaty. agreements between the two Indian nations in 1854
Although the treaty called on the U.S. government and 1855.
both to assist those Creek who wished to emigrate
west and to guarantee Creek title to allotted lands in Treaties with the Seminole, 1832 and 1833
Alabama, the federal government refused to assist Florida settlers had long complained about Indian
Creek in Alabama when whites seized their lands “depredations” committed by the Seminole, and
anyway. Land speculators took advantage of the Georgia, Alabama, and Mississippi plantation own-
remaining Muscogee Creek and perpetrated frauds ers protested that runaway slaves found refuge
resulting in utter turmoil and loss of the Creeks’ among these Florida Indians. Border disputes
homes. The Creek wandered around Alabama seek- between Americans and the Seminoles had exploded

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88 Historical Periods

into full-scale war in 1818, when forces led by ing for an injunction to prevent Georgia’s seizure of
Andrew Jackson invaded Florida to punish Semi- Cherokee lands. Attorneys for the Cherokee argued
noles and capture African Americans who lived that, as an independent nation, the Cherokee could
among them. In 1823, after Spain transferred control not be subject to state jurisdiction. Chief Justice John
of Florida to the United States, the Seminole signed a Marshall sympathized with the Cherokee position
treaty with the United States at Fort Moultrie that but declined to issue an injunction against Georgia,
ceded the bulk of the Florida peninsula to U.S. con- because Indian nations in the United States were
trol. Discord between the Seminole and Americans “domestic dependent nations” rather than indepen-
continued, however, as the Seminole found living dent foreign nations; an Indian nation’s relationship
difficult on their reduced acreage. Fulfilling his to the United States therefore “resembles that of a
charge under the new Indian Removal Act, Colonel ward to his guardian,” thus disqualifying the nation
James Gadsden negotiated a removal treaty with the from suing in the Supreme Court. The Cherokee had
Seminole Indians at Payne’s Landing in northeastern gained some sympathy for their plight across the
Florida on May 9, 1832. The treaty of 1832 stipulated United States, and they eagerly pursued another
that removal was conditioned on the Seminoles chance to bring the issue of their sovereignty to the
agreeing to settle in the western territory that the Supreme Court. Effective in March 1831, Georgia
War Department had chosen for them. Under required any white person living in Cherokee coun-
duress, the seven Seminole who journeyed west to try to have a license issued by the state. Missionaries
inspect their new land signed a new removal treaty Samuel Worcester and Elizur Butler ignored this
with American agents there at Fort Gibson on March condition, were subsequently arrested by Georgia
28, 1833. The treaty declared that the Seminole authorities, and appealed their case to the Supreme
agreed with the location of their new lands, accepted Court. In that case, Worcester v. Georgia (1832), Mar-
political unification with the Creek Indians, and shall declared Georgia’s extension of state law over
assented to immediate emigration. Upon their return the Cherokee unconstitutional and ordered the
to Florida, the Seminole agents renounced the Fort release of the missionaries. Georgia refused to abide
Gibson treaty as coerced, and the Seminole refused by the decision, and the executive branch of the fed-
to abide by the stipulations of either treaty. Mean- eral government had no legal way—short of military
while, a Seminole band that lived along the intervention—to compel Georgia’s compliance had it
Apalachicola River signed a separate removal treaty so desired. The Cherokee won their legal battle, but
with Gadsden in October 1832, and they migrated to Georgia’s refusal to honor that decision nullified
Texas in 1834. The confusion over which Seminoles their victory.
had authority to accept removal for other Seminoles After 1832, the Cherokee became less united in
created an impasse that resulted in a bitter, drawn- their determination to hold onto their lands, and a
out war between the Seminole and the United States significant minority, called the Treaty Party, worked
that began in 1835 and was often referred to as the to get a removal treaty signed with the U.S. govern-
Second Seminole War. That war did not end until ment beginning in 1834. A group of these men signed
1842, when all but a fragment of the Seminoles had a removal treaty with Secretary of War John Eaton in
been killed or forcibly removed; it cost the United Washington, D.C., and Jackson submitted it to the
States $30 million–$40 million and 1,500 dead sol- Senate in June 1834. The Senate, however, tabled the
diers. Pockets of Seminole and their African Ameri- treaty, refusing to discuss it. Aware that there existed
can brethren remained in Florida, however, and their a group among the Cherokee willing to sign a
descendants are still there. removal treaty, the Jackson administration sent a rep-
resentative to the Cherokee Nation in February 1835
Treaty with the Cherokee at New Echota, 1835 to negotiate with them. The “treaty party” was domi-
A few thousand Cherokee had voluntarily moved nated by four related men who aspired to elite status:
west after Georgia claimed possession of their lands Major Ridge, his educated son John Ridge, and his
in December 1828, but the bulk of the Cherokee two nephews, the brothers Elias Boudinot and Stand
refused to leave their homeland and instead fought Watie. Opposing them were the majority of Chero-
removal through the legal system. In 1830, after the kee, united under the leadership of principal chief
passage of the Indian Removal Act, the Cherokee John Ross. Ridge and his relatives signed a removal
Nation sued Georgia in the U.S. Supreme Court, ask- treaty on March 14, 1835, but it was rejected by the

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Indian Removal and Land Cessions, 1830–1849 89

Cherokee Council and thus nullified. In December Treaties with Ohio Valley Indians, 1831–1832
1835, another meeting with U.S. negotiators was held By 1830, many former Ohio Valley Indians had
at New Echota; only about two hundred Ridge sup- already signed treaties with the state of Ohio requir-
porters attended. A removal treaty was signed on ing them to move north to the Great Lakes or west to
December 29. The Cherokee Council condemned the the Mississippi River Valley. Various bands of these
treaty, and Ross appealed to the U.S. Senate to reject groups had already moved west of the Mississippi
it, but the Senate approved it by a one-vote margin. River before 1830, and these final removal treaties
The Treaty Party Cherokee emigrated to Indian Terri- sought to remove those who remained in the East
tory immediately, whereas the treaty required the rest and to settle any potential eastern land claims. Presi-
of the eastern Cherokee to leave by May 23, 1838. dent Jackson appointed Ohioan James B. Gardiner to
Ross and the more than 15,000 other Cherokee who negotiate removal treaties with remaining Indian
opposed the treaty appealed repeatedly to have the groups in Ohio. In August 1831, Gardiner signed
Treaty of New Echota voided, but they encountered treaties with a group of Shawnee and the Ottawa
little sympathy in the U.S. government. General Win- that ceded all their lands in Ohio in exchange for
field Scott arrived in the Cherokee country in the new lands in the western country beyond Missouri.
summer of 1838 to oversee the forced relocation of Profits gained from selling the ceded Ohio lands
the Cherokee, which resulted in numerous deaths were to be used for infrastructure improvements,
and the loss of property at the hands of rapacious such as mills, in the new lands; the remainder of the
whites. The split among the Cherokee continued after money was to be invested on behalf of the Indians.
removal: anti-removal Cherokee killed the two The Wyandot in Ohio insisted that they be allowed
Ridges and Boudinot, and Watie and Ross competed to inspect and approve of the new western lands
for political power from the late 1830s through the before agreeing to removal. When objectionable
Civil War in the 1860s. Meanwhile, a few hundred reports of the western lands came back, they refused
Cherokee managed to stay within the mountainous to emigrate. Thus, in the removal treaty signed by
western border of North Carolina, where their Gardiner and the Wyandot on January 19, 1832, the
descendants live today. Indians agreed to leave Ohio but “may as they think
proper, remove to Canada, or to the river Huron in
Michigan, where they own a reservation of land, or
The Removal Treaties: The North to any place they may obtain a right or privilege
Unlike the large, basically homogenous Indian soci- from other Indians to go” (Prucha 1994, 186–187). In
eties of the South, Indian groups farther north in October 1832, several former Ohio Valley Indian
New York, the Great Lakes, and the Mississippi groups, including the Piankashaw, Wea, Peoria, and
River Valley were smaller, more splintered societies Kaskaskia in Illinois and the Shawnee, Delaware,
that in many cases had already migrated dramati- Menominee, and Kickapoo, who had left Ohio
cally from place to place in the years since the Amer- decades earlier and were living at Cape Girardeau
ican Revolution. Though their particular histories and other points along the upper Mississippi River,
and circumstances differed from the southern Indi- met with William Clark at St. Louis and signed
ans, northern Indian groups confronted the same treaties for their removal west of Missouri.
insistent U.S. government and the same rapacious
attitude among white Americans. Negotiating from Treaties with New York Indians, 1831–1842
a position of strength, the United States signed The various Iroquois and other Indian groups in
treaties with the numerous northern groups to for- New York ceded millions of acres to the United
malize their removal to the West and to clear up con- States and other interests in the decades after the
flicting land claims. From 1829 to 1851, the United American Revolution. In 1831 and 1832, additional
States signed eighty-six ratified removal treaties Oneida, Stockbridge, and Brotherton Indians
with twenty-six Indian groups in the North. In many migrated to former Menominee lands in Wisconsin
cases, removal for the northern tribes was a continu- as a result of treaties involving the Menominee and
ation of their peripatetic history, though that does the United States. In 1838, residents of western New
not mean that they all accepted removal without York, particularly Buffalo, insisted that Indians
resistance or that they did not try to acquire the best remaining in the state, especially the Seneca, remove
possible terms. west beyond Missouri. A removal treaty with

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90 Historical Periods

Seneca and other New York Indians, such as rem- Potawatomi along the Tippecanoe River in Indiana
nant Oneida, Onondaga, Cayuga, Tuscarora, St. and the United States were signed in October 1832.
Regis, Stockbridge, Brotherton, and Munsee peo- These agreements resulted in land cessions for the
ples, was signed at Buffalo Creek in 1838. Most Wis- Potawatomi, but they also established around 120
consin land reserved to the New York Indians by reserves of land east of the Mississippi River for
previous treaties was also ceded for lands west of individual Potawatomi families. Because these
Missouri. When President Van Buren submitted the treaties did not specifically require Potawatomi
treaty to the Senate in April 1838, there erupted sig- removal to the west, Lewis Cass insisted on a large
nificant opposition to the treaty from the Indians treaty meeting with the Potawatomi, calling for their
and certain missionary groups, who contended that removal; the meeting was held in Chicago in Sep-
portions of the treaty were fraudulent and that a tember 1833. Catholic Potawatomi were allowed to
truly representative body of Indian chiefs did not remain in Michigan because of their conversion to
sign. Nonetheless, the Senate ratified the treaty, Christianity, although the Potawatomi did agree to
based on certain revisions, made in June, that transfer most of their eastern land titles for five mil-
required the Indians to reapprove the treaty. New lion acres west of Missouri. Dozens of Americans
signatures by more Indian leaders were obtained by insisted that they deserved payment from the sale of
September 1838, and the treaty was sent back to the eastern Potawatomi lands and government annuities
U.S. government for approval. The Senate and Pres- to cover supposed costs for services rendered in the
ident Van Buren passed the new treaty back and form of trade debts, injuries from conflicts such as
forth, neither seeking to be the sole body authoriz- the Black Hawk War of 1832, severance pay for old
ing the questionable treaty. When the Senate, seek- Indian agents and merchants, missionary activities,
ing the president’s recommendation, returned the schools, and so on. President Jackson forwarded the
treaty to his desk, Van Buren responded, “That Chicago treaty to the Senate in January 1834, despite
improper means have been employed to obtain the concerns about the legitimacy of many of the claims.
assent of the Seneca chiefs there is every reason to The Senate approved the treaty that May but
believe, and I have not been able to satisfy myself changed the area of western land that the Pota-
that I can, consistently with the resolution of the watomi were to receive, as Missouri desired the area
Senate of the 2d of March, 1839 cause the treaty to originally promised to the Indians. The treaty would
be carried into effect in respect to the Seneca tribe” not be valid until the Potawatomi agreed to the new
(Prucha 1994, 205). In January 1840, Van Buren lands, and the United States did not find any
again presented the treaty to the Senate, where it Potawatomi willing to do so until seven representa-
was bitterly debated and resulted in several tied tives signed the revised treaty months later. The Sen-
votes over the issue of whether or not the Indian ate ratified the revised treaty on February 11, 1835.
signatures had been obtained fraudulently. Eventu- Further treaties with individual Potawatomi land-
ally, Vice President Richard Johnson broke the tie, holders between 1834 and 1836 resulted in the ces-
and the revised treaty was accepted by simple sion of nearly all their lands east of the Mississippi
majority vote in the Senate in March 1840. In spite of River. One Potawatomi group in Indiana consisting
its passage, the complicated treaty of 1838 did not of around 850 persons refused to move west; they
result in the movement westward of many New were seized by the U.S. military and forcibly
York Indians. A new treaty with the Seneca in May marched west in 1838, and at least 40 Potawatomi
1842 reestablished their reserves in New York and died along the way.
allowed them to stay there.
Treaties with the Miami, 1833–1841
Treaties with the Potawatomi, 1832–1836 Much of the U.S. effort to extinguish Miami Indian
The Potawatomi negotiated nineteen separate land title east of the Mississippi was enveloped in
treaties with the United States during the removal similar efforts to remove the Potawatomi, as their
period. There were numerous Potawatomi villages lands bordered one another. Coming on the heels of
and bands possessing fragmented areas of land in the Black Hawk War of 1832, the United States
Michigan, Illinois, Indiana, and Wisconsin, which attempted to get the Miami Indians of Indiana to
resulted in the large number of treaties with them. In sign removal treaties in 1833. That initial effort
total, the Potawatomi still claimed more than five failed, but a treaty was signed with them on October
million acres until 1832. Three treaties between the 23, 1834, at the Forks of the Wabash. The Miami

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Indian Removal and Land Cessions, 1830–1849 91

ceded most of their remaining lands in Indiana, but In the Pine Tree Treaty of 1837, so named
individual Miami were allowed to maintain allot- because the United States sought access to timber
ments in the state, and the treaty did not explicitly resources on Chippewa land, the Chippewa ceded
call for Miami removal. President Jackson disap- millions of acres in Wisconsin and Minnesota, but
proved of that stipulation and delayed the treaty’s the treaty did not call for their complete removal
hearing by the Senate. His successor, Martin Van from the east, and the Chippewa retained usufructu-
Buren, submitted the treaty to the Senate in October ary rights to the ceded lands. In the Copper Treaty of
1837, and final approval came in December of that 1842, named for the copper deposits on Chippewa
year. Americans in Indiana opposed the treaty lands, the Chippewa ceded most of northern Wis-
because it allowed Miami to remain in the state on consin to the United States while still retaining
individual landholdings, so new treaties were nego- usufructuary rights; the area experienced a copper
tiated. In 1838, a treaty between the Miami and the mining boom for the rest of the nineteenth century.
United States assigned individual landholdings in In 1850, President Zachary Taylor issued an execu-
the East. The Miami insisted that only tribal mem- tive order extinguishing Chippewa usufructuary
bers could get such grants, that grants should not be rights in the ceded lands and ordered their removal
given to non-Miami who had married into the tribe. to unceded lands in Minnesota. The subsequent
Six Miami chiefs also traveled to Kansas to examine forced march of Chippewa west in the winter of
new lands. In 1840, Miami chiefs negotiated an unof- 1850–1851 has been termed the “Wisconsin Death
ficial treaty with the Indian agent assigned to their March” because more than four hundred Chippewa
area, seeking financial remuneration in return for died. Some Chippewa did manage, however, to
their removal to the West. This treaty, although not retain small tracts of land across northern Min-
initiated at the federal level, was submitted to the nesota, northern Wisconsin, and the Upper Penin-
Senate by President Van Buren anyway and sula of Michigan.
approved on May 15, 1841. Removal for most Miami The eastern Sioux ceded their lands east of the
occurred in 1845–1846, although some Miami contin- Mississippi in Wisconsin at a treaty meeting in
ued to own and live on individual land grants in Washington, D.C., in 1837. Their remaining lands in
Indiana. Minnesota came under increasing pressure from
European American settlement, especially after the
Treaties with the Winnebago, Minnesota Territory was created in 1849. In 1851, the
Chippewa (Ojibway), Eastern Sioux, eastern Sioux ceded most of their land in Minnesota,
and Menominee, 1829–1851 but land squatting by settlers and foot dragging by
Treaties with these Indians involved land in Wiscon- the federal government impeded until 1860 the final-
sin and, to a lesser extent, in Michigan and in Min- izing of payment for those lands and of the actual
nesota. Henry Dodge, Wisconsin territorial governor boundaries of the Sioux reserves remaining in south-
and ex officio superintendent of Indian affairs, ern Minnesota.
played the major role in enacting removal treaties The Menominee ceded portions of their Wiscon-
among these groups. In 1829 and 1832, the Win- sin lands in a series of treaties beginning in 1831, the
nebago signed treaties ceding some land in Wiscon- most spectacular being the 1836 treaty that ceded to
sin in exchange for a small strip of land west of the the United States more than four million timber-rich
Mississippi River between the Sioux to the north and acres in eastern Wisconsin. The Menominee dis-
the Sac and Fox to the south. A portion of the Win- agreed sharply, however, over the legality of these
nebago population moved west, but this land was cessions, and many Menominee refused to move for
untenable, for the neighboring Indian groups warred decades—or ever. In October 1848, the Menominee
against each other. A small group of Winnebago who signed a removal treaty exchanging their lands in
did not have authority to cede lands traveled to Wisconsin for territory across the Mississippi River
Washington, D.C., in 1837 and signed a treaty calling in Minnesota, but they refused to leave and finally
on all Winnebago to abandon their Wisconsin lands relocated along the Wolf River in Wisconsin in 1852.
and move west. Some Winnebago obeyed the treaty The amount of land ceded by Indian people as a
stipulations by moving west and eventually settling result of the removal treaties is staggering. In the
in Nebraska; other Winnebago, despite losing title to South, where the largest areas of eastern land under
their lands, stayed in Wisconsin, refusing to abandon Indian control existed, the Choctaw ceded more than
their homeland. ten million acres in Mississippi; the Chickasaw

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92 Historical Periods

ceded more than two million acres in Mississippi Horsman, Reginald. 1967. Expansion and American
and Alabama; the Creek ceded about five million Indian Policy, 1783–1812. East Lansing:
acres in Alabama; and the Cherokee ceded almost Michigan State University Press.
Kappler, Charles J. 1904. Indian Affairs: Laws and
eight million acres in Georgia, Alabama, Tennessee,
Treaties, vol. 2, Treaties. Washington, DC:
and North Carolina. Thus began a land craze in the Government Printing Office.
South, as white venture capitalists, land companies, Lancaster, Jane F. 1994. Removal Aftershock: The
plantation owners, and small farmers all sought Seminoles’ Struggles to Survive in the West,
quick access to the newly opened lands. The result- 1836–1866. Knoxville: University of Tennessee
ing antebellum South, the South in the period Press.
between 1830 and 1860, came to be characterized by Perdue, Theda, and Michael D. Green, eds. 1995.
rapidly expanding cotton production and African The Cherokee Removal: A Brief History with
Documents. Boston: Bedford Books of St.
American slavery in the areas abandoned by Indi-
Martin’s Press.
ans. The creation of the unified, white-dominated, Prucha, Francis Paul. 1962. American Indian Policy in
antebellum South would not have been possible the Formative Years: The Indian Trade and
without Indian removal, which had ironic conse- Intercourse Acts, 1790–1834. Cambridge, MA:
quences for the relationship between the states and Harvard University Press.
the federal government. Prucha, Francis Paul. 1984. The Great Father: The
Greg O’Brien United States Government and the American
Indians. Lincoln: University of Nebraska Press.
Prucha, Francis Paul. 1994. American Indian Treaties:
References and Further Reading The History of a Political Anomaly. Berkeley:
Akers, Donna L. 1999. “Removing the Heart of the University of California Press.
Choctaw People: Indian Removal from a Raffert, Stewart. 1996. The Miami Indians of Indiana: A
Choctaw Perspective.” American Indian Culture Persistent People, 1654–1994. Indianapolis:
and Research Journal 23: 63–76. Indiana Historical Society.
Beck, David R. M. 2002. Siege and Survival: History of Remini, Robert V. 2002. Andrew Jackson and His Indian
the Menominee Indians, 1634–1856. Lincoln: Wars. New York: Penguin.
University of Nebraska Press. Rogin, Michael Paul. 1975. Fathers and Children:
Carson, James Taylor. 1995. “State Rights and Indian Andrew Jackson and the Subjugation of the
Removal in Mississippi, 1817–1835.” Journal of American Indian. New York: Alfred A. Knopf.
Mississippi History 57: 25–41. Ronda, James P. 2002. “‘We Have a Country’: Race,
Clifton, James A. 1987. “Wisconsin Death March: Geography, and the Invention of Indian
Explaining the Extremes in Old Northwest Territory.” In Race and the Early Republic: Racial
Indian Removal.” Transactions of the Wisconsin Consciousness and Nation-Building in the Early
Academy of Sciences, Arts and Letters 75: 1–39. Republic, Michael A. Morrison and James
DeRosier, Arthur, Jr. 1970. The Removal of the Choctaw Brewer Stewart, eds. Lanham, MD: Rowman
Indians. Knoxville: University of Tennessee and Littlefield.
Press. Royce, Charles C. 1899. Indian Land Cessions in the
Edmunds, R. David. 1978. The Potawatomis: Keepers of United States. Washington, DC: Government
the Fire. Norman: University of Oklahoma Press. Printing Office.
Foreman, Grant. 1932. Indian Removal: The Emigration Satz, Ronald. 2001. Chippewa Treaty Rights: The
of the Five Civilized Tribes of Indians. Norman: Reserved Rights of Wisconsin’s Chippewa Indians in
University of Oklahoma Press. Historical Perspective. Madison: Wisconsin
Foreman, Grant. 1946. The Last Trek of the Indians. Academy of Sciences, Arts and Letters.
Chicago: University of Chicago Press. Satz, Ronald. 2002. American Indian Policy in the
Garrison, Tim Alan. 2002. The Legal Ideology of Jacksonian Era. Norman: University of
Removal: The Southern Judiciary and the Oklahoma Press.
Sovereignty of Native American Nations. Athens: Sellers, Charles. 1991. The Market Revolution:
University of Georgia Press. Jacksonian America, 1815–1846. New York:
Getches, David H., Charles F. Wilkinson, and Robert Oxford University Press.
A. Williams, Jr. 1998. Cases and Materials on Sheehan, Bernard W. 1973. Seeds of Extinction:
Federal Indian Law. St. Paul, MN: West Group. Jeffersonian Philanthropy and the American Indian.
Gibson, A. M. 1963. The Kickapoos: Lords of the Middle Chapel Hill: University of North Carolina Press.
Border. Norman: University of Oklahoma Press. Sleeper-Smith, Susan. 2001. Indian Women and French
Green, Michael D. 1982. The Politics of Indian Removal: Men: Rethinking Cultural Encounter in the
Creek Government and Society in Crisis. Lincoln: Western Great Lakes. Amherst: University of
University of Nebraska Press. Massachusetts Press.

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Indian Removal and Land Cessions, 1830–1849 93

Tanner, Helen Hornbeck, ed. 1987. Atlas of Great Lakes Washburn, Wilcomb E. 1973. The American Indian and
Indian History. Norman: University of Oklahoma the United States: A Documentary History, vol. 4.
Press. New York: Random House.
Wallace, Anthony F. C. 1999. Jefferson and the Indians: Young, Mary Elizabeth. 1961. Redskins, Ruffleshirts
The Tragic Fate of the First Americans. Cambridge, and Rednecks: Indian Allotments in Alabama and
MA: Harvard University Press. Mississippi, 1830–1860. Norman: University of
Wallace, Anthony F. C. 1993. The Long, Bitter Trail: Oklahoma Press.
Andrew Jackson and the Indians. New York: Hill
and Wang.

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Reservations and Confederate
and Unratified Treaties, 1850–1871

F
F
rom the point of view of U.S. policymakers, tions with the United States. Many of these territo-
Indian reservations were a necessary aspect of ries were not, strictly speaking, parts of the U.S. pub-
American expansion, nationhood, and state lic domain that were “reserved for the use of” Native
building. The creation of reservations, or reserves, nations. For example, when the Five Civilized
aboriginal homelands, or areas indigena, was equally Tribes—the Cherokee, Muscogee Creek, Seminole,
the result of the larger European colonial relation- Choctaw, and Chickasaw Nations—were removed
ship with indigenous peoples in the Americas, from their traditional homelands in the East, the
Africa, Asia, and Australia. Whatever they were lands they acquired in the newly established Indian
called, the establishment of these defined, often iso- Territory carried titles in fee simple, thus making
lated and greatly compressed indigenous living them relatively well protected from further white
spaces by means of treaties, agreements, and con- encroachment. Many other so-called reservations
ventions was a distinct phase in the process of were in reality greatly diminished homelands that
American expansion. Often, reservations were sim- had never become legally a part of the U.S. public
ply the remnants of indigenous homelands. The domain. Technically, one could argue that Native
United States, however, removed a number of nations, not the federal government, had by treaty
Native nations from their homelands to distant ter- reserved these lands for their own use. Still, as most
ritories acquired from other indigenous peoples of the Native nations had concluded some form of
through treaties. diplomatic relations with the United States, the fed-
Between 1850 and 1871, when the federal gov- eral government sent agents to the reservations in
ernment officially ended the treaty-making process, order to oversee the implementation of treaty provi-
more than a hundred Native American treaties were sions and generally to maintain order within their
ratified, principally to institute some semblance of designated areas of responsibility. Agents were also
order on the American frontiers. Most of these were sent as negotiators to the Native nations to acquire
“peace and friendship” treaties concluded to curtail more lands. Until 1849, the agents and the imple-
the warfare between the Native peoples who owned mentation of Indian policies were under the bureau-
the land and the migratory whites who coveted it for cratic control of the U.S. Department of War. Hence,
themselves. Essentially, the federal negotiators and the developing “reservation system” was viewed as
the governing bodies of the Native American nations a military operation, and in fact many of the agents
mutually agreed that strict boundaries between for years to come were army personnel. The State
whites and Indians must be established and main- Department, arguably the agency that should have
tained before any kind of peace could be realized. maintained diplomatic relations with Native nations,
Native negotiators were always seeking peace—or, had little to do with Indian affairs except to record
perhaps, the simple absence of war—so that their the final ratified treaties with the tribes.
peoples could enjoy the permanence of a homeland The reservation system itself became a highly
and the security of physically possessing recognized bureaucratic and permanent American institution.
political boundaries. In short, between 1850 and After 1849, the Bureau of Indian Affairs, most often
1871, the United States entered into the phase of referred to as the Indian Office, existed under the
colonialism that rested on the ideas of restricting the Department of the Interior. The “Indian Problem”
movements of indigenous peoples, defining the had essentially boiled down to the impossible
boundaries between the races, and removing any administrative predicament of securing more space
and all obstacles to the placement of European for non-Indian settlement while at the same time
American colonies in the American West. maintaining peace with the Native nations that had
to survive on increasingly smaller parcels of land.
The Indian Office gained greater discretionary
Reservations authority over Indian affairs during this period and,
As it came to be used in the period, the term reserva- by way of administrative fiat, began to emphasize
tion applied to nearly every piece of ground occu- subtle variations in policy. For major Indian policy
pied by Native nations having formal treaty rela- decisions, Congress, the executive branch, and the

95
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96 Historical Periods

Supreme Court set the agenda and formulated the domain, most often acquired through Native land
general approach to Indian affairs. The Indian Office cessions in treaties, went to subsidize the laying of
implemented, administered, and evaluated the track. The railroads, in turn, fed off the timber, coal,
details of policy and within this particular context oil, and steel industries. It is little wonder that many
was often able to direct or redirect the course of of the treaties signed during the period granted rail-
Indian-white relations. road rights-of-way through Indian lands, and in
From the very outset of European imperialism, most cases the Indian lands that were acquired by
numerous individuals advocated the “civilization” the United States went immediately to subsidize the
and eventual assimilation of Native Americans into railroad system without ever having been made a
the dominant society. George Washington promoted part of the public domain.
the notion of “civilizing” Indians in his inaugural Between the years 1850 and 1861, a spate of
address. The idea underpinned the reservation sys- treaties were concluded to open and secure the lands
tem in one important way. Because the Native for the United States on the Pacific coast. Through-
nations’ land bases were becoming smaller with out the period, gold seekers were pouring into the
each new treaty, the Indian Office introduced Euro- newly acquired territory of California. From the
pean American farming methods, livestock produc- beginning of the gold rush in 1849, whites had
tion, various home industries such as wool spinning begun an arbitrary but widespread massacre of
and weaving, and Christianity in the effort to pro- indigenous populations. The remnants of the Cali-
mote “civilization” among the indigenous nations. It fornia nations that survived the slaughter either fled
was thought that “civilization” and especially its into isolation to avoid the heavily armed, remorse-
accoutrements—the spinning wheels, livestock, and less, death-dealing whites or sought sanctuary
farm implements—would help Natives survive on around the old Spanish missions. By 1850, when Cal-
what lands they had left. Native peoples, especially ifornia was admitted to the Union, most Native lead-
on reservations that had been established by treaty, ers would probably have thought it wise to avoid
were quickly becoming regarded as “wards” of the any and all contact with the whites, no matter their
U.S. government and, as such, more or less arbitrar- intentions.
ily subjected to the caprices of the Indian Office California had been ceded to the United States
bureaucracy. Ultimately, this system of domestic under the Treaty of Guadalupe Hidalgo and so
colonialism deprived Native nations of the ability to claimed title by right of conquest. As a result of the
experience change on their own terms. The agents Supreme Court decision in Johnson v. M’Intosh (1823),
enforced cultural and economic changes on the however, the federal government nevertheless recog-
Native peoples so that they could eke out a meager nized that Indians possessed the “right of occu-
living on their very much smaller domains. Dimin- pancy” to the land. In consequence, the government
ished land bases for Native Americans meant, in sent a three-man commission to California to con-
turn, the opening of more territory for white settle- vince Native Americans to accept the jurisdiction of
ment. White settlement, it was thought, would fur- the federal government and to recognize U.S. sover-
ther encourage civilization and allegiance to the eignty over California. By January 1852, the commis-
United States among the Native peoples. In this sion had negotiated eighteen treaties with 139
chain of reasoning, the ultimate aim of the reserva- Native American bands, towns, confederated
tion system was to fulfill the goal of American Mani- groups, and tribal subdivisions. The treaties estab-
fest Destiny in as orderly and relatively nonviolent a lished reservations and provided for the payment of
fashion as possible. annuities and the services of teachers and black-
smiths, and promised to provide the Native groups
with subsistence in the form of livestock. The negoti-
Surplus Lands ations went to naught, however; because the Senate
The opening of more land for white settlement could not grasp the intricacies of California Native
between 1850 and 1871 also paved the way for the sociopolitical organization and because the costs of
“take-off” period in American industrial growth. It carrying out the provisions of the treaties were
opened greater acreage not only to farmers and becoming very high, it rejected their ratification.
ranchers but also to the logging and mining indus- Federal agents were also occupied with negoti-
tries. Railroads were building, and especially after ating treaties with the tribes of the Oregon and
the Civil War, large grants of the American public Washington Territories. The main thrust of treaty

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Reservations and Confederate and Unratified Treaties, 1850–1871 97

with the Native nations located in the territories, the


making in the 1850s actually centered on these two Senate did not ratify the Willamette Valley treaties.
potential states of the Union. In 1848, the United In 1906, however, Congress wrote a provision
States and Great Britain agreed, after years of dis- into that year’s Indian Appropriation Act authoriz-
pute, to draw a boundary demarcating the line ing the secretary of the interior to investigate the
between the United States and Canada. The U.S. number of Clatsop, Chinook, and Tillamook people,
claim to what became the Oregon Territory—the either signatories of the treaties or their descendants,
present states of Oregon and Washington—was ten- who were affected by the land cession. In 1851, tribal
uous. There were several trading posts, both British leaders had negotiated monetary settlements to be
and American, in the region, but until the 1830s paid over the course of ten years. The Native leaders
white settlement was relatively insignificant. After had insisted on the payments because their peoples
1831, American immigrants began to pour into the were in a serious decline as a result of white intru-
Willamette Valley in Oregon and the Columbia River sion and basically did not want the federal govern-
basin in what is now Washington. The United States ment to obtain the land without some kind of
had no legal claim to the territory—either by right of exchange or benefit. Because the Senate failed to rat-
discovery or by conquest in a just war—but they had ify the treaties, the payments were not forthcoming.
the numbers. Eventually, Great Britain bowed to the During the first years of the twentieth century,
land-hungry Americans, and in 1850 Congress the federal government became interested in clarify-
passed the Oregon Donation Act, establishing a spe- ing both the status of Native peoples under law and
cial commission to negotiate with and extinguish the the validity of U.S. land claims. On the one hand, the
land titles held by the tribes of the Oregon Territory. government was attempting to end the reservation
This commission, although abolished in February system and extract itself from the “Indian business.”
1851, nevertheless negotiated six treaties with sev- On the other, there was a growing interest in protect-
eral bands of the Kalapuya and Molala nations. The ing what was left of tribal lands so that, as individu-
law abolishing the Donation Act commission trans- als, Native people would possess a level of income
ferred its duties to the superintendent of Indian that would make their gradual assimilation into
affairs. As a result, the Donation Act commission’s American society less abrupt, confusing, and pain-
treaties were not ratified. Anson Dart, the superin- ful. For whatever the reason, Congress prompted a
tendent, completed at least thirteen treaties with count of the populations of the tribal signatories of
tribes in western Oregon on which the Senate took the Willamette Valley treaties and in 1913 appropri-
no action. While Dart’s treaties with the bands of the ated $66,000—a sum greater than the original,
Tillamook, Clatsop, and Chinook languished in the agreed-upon remuneration—to pay the surviving
Senate, the administration and Congress divided the tribal members for the loss of their lands.
Oregon Territory into the separate territories of Ore- This compensatory action proved that even
gon and Washington and gave the power to negoti- “unratified” treaties could indeed become operable.
ate with the tribes to the territorial governors. In the case of the Willamette Valley treaties, both
parties—the federal government and the Native
nations—mutually agreed to reconstitute the mem-
Unratified Treaties bership of the tribes in order to fulfill the treaties’
Many of the settlements negotiated with the Native stipulations. The treaties were thus “ratified” bilater-
nations of Oregon and Washington, although still ally because both sides actually complied with the
arguably valid and thus operable, nevertheless have provisions of these specific conventions.
been relegated to status of “unratified” or “invalid” The “unratified” treaties with the Chinook,
treaties. The numerous agreements with these tribes Tillamook, and Clatsop did not provide the United
signed in 1851 are cases in point. Dart’s treaties of States with clear title to the rest of Oregon and Wash-
1851 with the Clatsop, Tillamook, and Chinook ington. Over the span of only two years, sixteen
bands ceded the entire Willamette Valley of Oregon treaties were negotiated and eventually ratified with
to the United States. These treaties were negotiated several other nations of the Northwest. In September
primarily to transfer legally the already white- 1853, the headmen of the Rogue River peoples
occupied valley to the U.S. public domain. Because signed away a large portion of Oregon Territory,
of the change in policy directing the governors of from which they agreed to be removed to another
Washington and Oregon to negotiate agreements “selected” site at a later date. In the same month, the

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98 Historical Periods

Umpqua of Cow Creek, also in Oregon, gave up and division of the Umpqua and Kalapuya reserved
another large tract with the provision that a small lands into twenty-, forty-, sixty-, and eighty-acre
section of land be “deemed and considered an lots. The lots would be distributed to single males
Indian reserve until a suitable selection shall be and to families according to the number of immedi-
made by the direction of the President of the United ate members. A single man would receive twenty
States for their permanent residence.” In effect, the acres; a family of two would get forty acres; families
Umpqua and Rogue River peoples transferred their with three to five members would receive sixty
title to the land to the United States, and a portion acres; and a family of six or more could claim eighty
was reserved for their temporary use. acres. Families had to work the land, or their allot-
The very next year, another Umpqua band and ments would be redistributed to other tribe mem-
the Rogue River leaders were negotiating new bers. The treaty also stipulated that, when Oregon
treaties. Under the Rogue River treaty of 1854, a por- eventually attained statehood, its legislature could
tion of the previously reserved land known as the not remove any of the federal restrictions placed on
Table Rock reserve was to be put aside as a reserva- the Indian allotments. Here, in one fell swoop, the
tion for the Rogue River people and for other dis- federal government attempted to encapsulate the
placed Native bands. The Table Rock land was to be intentions of the “civilization” policy. In the first
both a reservation and a refuge until the federal gov- place, it was thought that the individual or private
ernment deemed it necessary to remove the people ownership of property would immediately infuse
once again. The Rogue River leaders did, however, the allottee with the urge to cultivate the land and
secure a provision in the new treaty stipulating that, thus gain an income. In theory, private property
should a future removal take place, the Nation would liberate the allottee from tribal customs and
would share individually the $15,000 payment for dependence on extended family members and
their lands, as had been secured in the negotiations would ultimately promote self-reliance. The preemp-
of the previous year. In the same month, federal tion of state jurisdiction over the allotments was an
agents negotiated a new treaty with the Cave Creek equally significant step in the attempt to woo Indi-
band of the Rogue River people. The new treaty ans away from their identities as members of sepa-
included the Chasta and Scoton tribes and secured a rate, sovereign nations. An allottee would, presum-
previously unceded stretch of the Rogue River valley ably, owe his first allegiance to the federal
and lay along Applegate Creek. The new Umpqua government as the guarantor of the individual’s real
treaty included the confederated Kalapuya peoples’ property.
ceded lands along Calapooia Creek and the Illinois Every treaty of the period contained an article
River in Oregon. Like the Rogue River agreement, that not only established peace but also promised
the treaty provided for a residential reserve and cash perpetual amity between the signatories. The Native
remuneration to be paid as annuities. The Chasta of nations that negotiated the treaties literally became
Oregon also negotiated a new treaty in 1854 ceding a protectorates of the United States. As such, their sov-
large tract of land essentially bordering the lands ereignty, especially in a domestic sense, was not
that had formerly belonged to the Rogue River and eroded in the least. They did, however, enter into a
Umpqua peoples. Moreover, the Chasta were to be trust relationship with the United States that has
removed to the Rogue River’s Table Rock Reserva- been maintained to this day.
tion. The Chastas were promised $2,000 annually for Three ratified treaties negotiated in Oregon Ter-
the next fifteen years for the land; thereafter, their ritory were concluded in 1855. In January, the Kala-
payments would be combined in the Table Rock puya nation entered into another treaty with the
annuities, of which the Chastas would receive a full United States, one that surrendered more lands
share. All the negotiations in Oregon in 1854 con- along the Columbia River to the Cascade Mountains
tained “civilization” provisions. The Native nations for the sum of $145,000, to be paid in decreasing
were to receive farm implements, blacksmith ser- amounts over a period of twenty years. The follow-
vices, schoolhouses, medical care, and livestock. ing June, the United States concluded a convention
The Umpqua treaty furthered the government’s with several bands of Walla Walla and the Wasco
“Indian civilization” policy in another important Nation at The Dalles in Oregon. Not only did the
way. It contained a provision for the allotment of treaty of The Dalles cede more territory to the Amer-
reservation lands at the discretion of the president of icans, but it also secured for the Walla Walla and
the United States. Allotment meant the surveying Wasco the right to fish in “usual and accustomed sta-

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Reservations and Confederate and Unratified Treaties, 1850–1871 99

tions.” This provision essentially said that the Walla eral agents, however, were given the power to judge
Walla and Wasco peoples could take fish even out- whether or not American “depredation” claims
side the boundaries of their assigned reservations. against the tribes were “satisfactorily proven.”
The treaty in December with the Molala nation extin- Hence, while the Native nations were asserting the
guished the tribe’s “right, title, interest and claim” to sovereign capacity to enter into protectorate status
the territory bordering the lands surrendered by the and take up the responsibility for the actions of their
Umpqua, Chasta, Scoton, and Rogue River peoples peoples, the Americans were assuming an extensive
the year before. Except for the Indian reservations, political jurisdiction over the tribes.
the title to the entire Oregon Territory had shifted In June 1855, several Native nations and the
to the United States. United States negotiated three treaties at Camp
The Washington Territory treaties were equally Stevens in the Walla Walla valley. The Walla Walla,
extensive in terms of land surrendered in a relatively Cayuse, and Umatilla peoples concluded an agree-
short period of time. Between December 1854 and ment whereby, in exchange for $100,000, they ceded
July 1855, the Native nations gave up their “right, a large tract of land in Washington and agreed to be
title, interest and claim” to the land from the north- moved to a reservation. These confederated nations
ern border with Canada, to Oregon in the south, and were to remove to a reservation chosen by the presi-
from the Pacific Ocean in the west to the Great Plains dent of the United States, which was to be surveyed
in the east. The lands around Puget Sound and along for allotment when the president deemed it in the
the Columbia River were especially desirable. The best interests of the Indians to do so. In separate
fishing, the timber, the fine harbors, the access to the treaties, the Yakima and Nez Perce agreed to nearly
Pacific Ocean whaling grounds, and the fertile farm- the same stipulations. In July, at Hell Gate in the Bit-
lands were much too valuable to the Americans for terroot Valley, the Flathead, Kutenai, and Pend d’Or-
them to remain in Indian hands. The titles to the vast eille Nations surrendered most of the western half of
tracts of land surrounding Puget Sound were trans- the territory and agreed to move onto smaller reser-
ferred to the United States in five treaties concluded vations within their former national boundaries.
between December 1854 and June 1855. The Medi- Almost the entire territory of the future state of
cine Creek convention, signed with the Nisqally, Washington was in the hands of the United States.
Puyallup, Steilacoom, Squaxin S’Homamish, Ste- Except for a few provisions dealing with reser-
hchass, Tapeeksin, Squiaitl, and Sahewamish on vation boundaries and amounts of money pledged
December 26, 1854, gave up the southern end of the to the tribes, the treaties negotiated in Washington
sound. A month later, the Duwamish, the Territory were all very similar in wording and in
Suquamish, and several other nations agreed to the form. Treaties in the 1850s were becoming more or
Point Elliott treaty, which secured the eastern flank less standardized. All of the Washington Territory
of Puget Sound for the United States to a very great and a few of the Oregon treaties, however, provided
depth. In June 1855 came the Point No Point treaty, that the Native nations would retain the right to fish
by which the Clallam, Twana, and Chemakum ceded in their usual and accustomed “stations” or
the lands west of the Point Elliot treaty, thus giving “grounds” and even to set up buildings in these
up nearly all of the Olympic Peninsula. The rest of places to cure the catch and house the fishermen
the peninsula was secured in the Neah Bay treaty of during the seasonal fish or whale migrations. The
June 1855 with the Makah, and the Quinault River Native negotiators essentially secured the right to
treaty of July 1855 with the Quinault, Queets, Hoh, fish even outside the boundaries of their reserva-
and Quileute peoples. These treaties contained pro- tions. These fishing rights, guaranteed by treaty with
visions under which the Native nations pledged the United States, would later become a long-drawn-
eternal friendship with the United States and out battle between the Native nations and the state
promised not to harbor anyone suspected of break- of Washington. In the end, the treaties superseded
ing the law. The Point Elliot treaties, for example, state fish and game regulations, thereby conceding a
stipulated that, should any Indian “violate this degree of Native sovereignty.
pledge” and harm an American citizen in any way, While a number of officials were sedulously
the tribe’s annuities would be used to compensate seeking to open up the territories of Oregon and
the victims. In essence, the Native nations agreed to Washington, others were equally preoccupied with
become protectorates of the United States and securing the land routes over which the whites
assume liability for the actions of their citizens. Fed- would come in droves to the northwest coast and

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100 Historical Periods

California. One of the first of these was the Navajo U.S. military authority. It was thought, perhaps, that
(spelled Navaho in the original document) treaty of the assumption of U.S. jurisdiction over all white
1849. Under the Treaty of Guadalupe Hidalgo, the crimes would end the almost constant state of war
Native nations of the Southwest were specifically between white immigrants and the Apache.
placed under the “exclusive jurisdiction and protec- The Comanche-Kiowa-Apache treaty of the next
tion” of the United States. The Navajo treaty, one of year was signed at Fort Atkinson in the Indian Terri-
“peace and friendship,” ceded no land and estab- tory. These Native nations agreed to end warfare,
lished no reservation but bound the Navajo Nation both between themselves and against the United
to the U.S. laws governing the trade and intercourse States. They agreed, as did the Apache in the Santa
between Indian and American citizens. For the pur- Fe treaty, to forgo incursions into Mexico and restore
poses of enforcing these laws, the Navajo Nation captives to both the Mexican government and the
was subjected to a jurisdictional annexation to New United States. The treaty also carried a free-passage
Mexico Territory. The annexation meant that the clause and bound the Comanche, Kiowa, and
Navajos were to repatriate American and Mexican Apache to a provision that called for the laying out
captives and return all property taken in raids. The of permanent roads through their territories. The
Navajo were also to deliver to the authorities of New Native nations agreed to the erection of military
Mexico Territory the murderer or murderers, pre- posts and to refer cases of white criminality to mili-
sumably Navajo, of one Micente Garcia. tary authorities.
According to the reasoning at the time, the The pressing need on the part of the United
United States by right of conquest took the territory States to ensure the passage of immigrants to the
from Mexico. Presumably, the Spanish had secured West Coast led to the demand for the Native nations
legitimate title to the land of the American South- to surrender more land in what would become the
west either by way of conquest or by right of discov- states of Minnesota, Wisconsin, Iowa, Nebraska, and
ery, according to the established European means of especially Kansas. The list of treaties with the tribes
acquiring new lands. Mexico gained the title from of these areas was remarkably long. Native nations
Spain when it rebelled and became an independent that had been removed from Ohio, Indiana, Illinois,
state. and Michigan and as far away as New York to the
On the other hand, U.S. negotiators nevertheless “permanent Indian frontier”—a space that roughly
realized that the Navajo Nation, like the Native peo- covered what today is southern Nebraska and all of
ples of California, had, at minimum, a right of occu- Kansas and Oklahoma—were forced to reduce their
pancy to their lands. In consequence, federal agents landholdings once again to tiny reservations or
negotiated a “free and safe passage through the terri- move south into Indian Territory. These land ces-
tory of the aforesaid Indians” so that white immi- sions affected the land bases of the Seneca,
grants might traverse northern New Mexico Terri- Delaware, Miami, Mdewakanton, Wahpakoota, Sis-
tory in route to California. The treaty also stipulated seton, and Wahpeton Sioux, Wyandot, Sac and Fox,
that a string of military posts be established “to Oto and Missouri, Shawnee, Omaha, and Iowa
afford protection to all the people and interests of the Nations. The Miami, Peoria, Kaskaskia, Kickapoo,
contracting parties.” The right of occupancy also Chippewa, Winnebago, and Ottawa Nations also
elicited the agreement that the federal government surrendered huge amounts of territory, all with the
would “at its earliest convenience, designate, settle promise of annuity payments, the protection of the
and adjust” the boundaries of the Navajo national federal government, and, most importantly, peace.
domain. The list of unratified treaties that attempted to
“Free-passage” treaties were negotiated with reduce Native landholdings to the bare minimum
the Apache in 1852 and with the Comanche, Kiowa, and institute peace all along the American frontier
and Apache (Plains) in 1853. The former treaty was was equally lengthy. Some of these treaties were
signed at Santa Fe, New Mexico Territory. It estab- negotiated with nations that had never before dealt
lished peace and, to enforce the safe passage of with the Americans. Others were stopgap agree-
whites and maintain order, contained a provision ments made to quell violence either immediately or
whereby the Apache agreed to the erection of U.S. until more comprehensive conventions could be
military posts in their country. They also approved worked out. A number of these treaties could, in fact,
the stipulation that all cases of aggression by whites contain provisions that might be operable simply
against them and their property would be referred to because Congress has referred to them in other

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Reservations and Confederate and Unratified Treaties, 1850–1871 101

treaties or in making appropriations to fulfill one or range worked out a new and detailed treaty in 1855.
another promise made to Native nations. In format much like most of the treaties of the
The Fort Laramie treaty of 1851, like the Navajo period, the Blackfeet agreement was intended to set-
treaty of 1849, stands out in this period because it tle territorial boundaries and maintain order along
did not call for a land cession on the part of the the northern immigrant trail to Washington Terri-
Native nations. Basically, it was a peace concord that tory. Peace and friendship were declared between
defined the national boundaries of several indige- the United States and the Native nations as well as
nous peoples of the northern plains. The Sioux, Gros between each one of the signatory Native peoples.
Ventre, Mandan, Arikara, Assiniboine, Blackfeet, The Native parties to the treaty also agreed to cease
Crow, Cheyenne, and Arapaho Nations all partici- hostilities, except in self-defense, with the Crow,
pated in the negotiations and agreed not only to the Assiniboine, Cree, Snake (Shoshone), and several
stipulated national borders but also to the building Lakota bands. The Blackfeet consented once again to
of roads and military posts within these boundaries. their national boundaries, as had been “recognized
Ostensibly, the roads were for the free and safe pas- and defined by the treaty of Laramie,” even though
sage of white immigrants on the trail to the West Congress had amended the 1851 convention almost
Coast, and the military posts were erected in order to to the point of invalidity.
protect both Indians and whites from each other’s Perhaps the main point of the Blackfeet treaty
potential depredations. The federal government, in was to secure a common hunting ground for the var-
compensation, was to pay the Native nations $50,000 ious signatories and to allow whites both to live in
a year for fifty years “for their maintenance and the and to pass through the large Blackfeet Nation
improvement of their moral and social customs.” domain. No other tribes were allowed to establish
permanent settlements; each Native nation would be
allowed to enter the Blackfeet Nation only to use it
Land Payments as a common for the taking of buffalo, and for other
Probably because no land cession was agreed to in purposes only by way of certain designated points of
the Fort Laramie treaty, Congress did not pass on it entry. Although the Assiniboine Nation was not
without altering one of its most important provi- party to the treaty, it was specifically mentioned as
sions. Congress essentially decreased the fifty annual one of the groups with hunting rights within Black-
payments to ten, with another five to be paid at the feet territory. The treaty went on to stipulate that all
discretion of the president. This sum of money was Indians were to stay in their respective lands except
hardly enough to aid the nearly fifty thousand mem- when on hunting forays. The treaty allowed for the
bers of the several Native nations involved in the construction of roads “of every description” and the
negotiations; from the point of view of the Native establishment of telegraph lines and military posts.
leaders, it was a serious breach of the agreement U.S. citizens were allowed the free navigation of all
they had made. The congressional amendment made streams and rivers and the permanent use of land,
the treaty’s standing hazy at best, even in the eyes of timber, and other natural resources for the erection
the whites. Charles J. Kappler, in his 1904 compila- of “agencies, missions, schools, farms, shops, mills,
tion of treaties, stated that the Fort Laramie treaty stations, and for any other purpose for which they
was “never ratified or printed.” It was nevertheless may be required.” For the effective opening of the
valid even in its altered form, and the Native Blackfeet Nation to American colonization, the
nations, although they voiced concern over the Blackfeet, Piegan, Blood, and Gros Ventre were to
changes made, complied with its provisions. receive $20,000 annually for a period of twenty
Four years later, however, some of the Native years. The president, however, could increase the
nations involved in the Fort Laramie treaty, as well annuity to $35,000 should circumstance warrant the
as some of those engaged in making agreements increase.
with federal agents in Washington Territory, were The main thrust of treaty making during the
once again at the negotiating table. The Blackfeet 1850s was to acquire more land and thereby gain
Nation (consisting of, and so recognized by the political efficacy within the territory claimed by the
United States, the Piegan, Blood, and Blackfeet United States as its national domain. Underlying the
proper); the Gros Ventre from east of the Rocky acquisition of control over Native territories were
Mountains; and the Flathead, Upper Pend d’Oreille, strategies calculated to smooth over the hostilities
Kutenai, and Nez Perce from the west side of the aroused when Native Americans were displaced or

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102 Historical Periods

confined to smaller tracts of land. One such strategy by the United States, provided that the secretary of
was the introduction to Native peoples of the con- the interior audit the Chickasaw account “from time
cept of private property by way of allotment in sev- to time.” The Chickasaws would have the “privi-
eralty. For example, in 1858 the Sisseton and Wah- lege” to review the audit and submit objections to it
peton Sioux penned a treaty in Washington, D.C., within a reasonable amount of time. The cost to the
that agreed to new reservation boundaries and to United States was ultimately quite low. The four-
having them surveyed with the intent of dividing mile-square parcel in Tennessee, for example, which
the reservation into individually owned, eighty-acre had been originally set apart as a reservation under
plots. The ultimate reason for the acceptance of this the provisions of the Chickasaw treaty of 1818, was
new treaty was simply that the U.S. Senate reneged to be purchased at a rate of no more than “one dollar
on the Sisseton-Wahpeton agreement of 1851. The and twenty-five cents per acre.”
Senate unilaterally struck the provision in the treaty Two years later, the Chickasaws were back at
of 1851 that set apart a large tract of land for the Sis- the negotiating table. When removal took place, the
seton-Wahpeton on the Minnesota River, and instead Chickasaw and Choctaw were effectively placed
offered a sum of money “at the rate of ten cents per together on one large piece of land that made up
acre” to the Sisseton-Wahpeton Nation. Other than most of what would become southern Oklahoma.
providing excuses for amending the treaty of 1851, The Chickasaw and Choctaw leaders more or less
the new convention provided for the same lands to agreed to this circumstance, very likely because they
be allotted, which in turn considerably reduced recognized that, since they were culturally and lin-
Sisseton-Wahpeton landholdings. Individual tribe guistically tied, the two nations were once one. By
members, instead of the Sisseton-Wahpeton Nation, 1854, however, the jurisdictional lines between the
were to hold the land. two peoples had become unclear. The United States
was brought into the dispute over the Chickasaw-
Choctaw boundaries, and a new treaty was negoti-
Addenda Treaties ated. Essentially, the two nations agreed to draw a
The federal government negotiated no fewer than line between themselves: the Chickasaw jurisdiction
five treaties or addenda to treaties with the Musco- was established in the western half of the territory,
gee Creek, Seminole, Chickasaw, and Choctaw in the the Choctaw in the east.
1850s. These tribes had been forcibly removed from The dispute did not end, and the very next year
their homelands in the southeastern United States to the Chickasaw and the Choctaw agreed to a redraw-
the Indian Territory (present Oklahoma) in the ing of the boundaries between the two nations and
1830s. Not all their tribe members, however, had to lease their lands west of longitude 98° to the
made the trip. A large number of Choctaws United States. The two nations separated completely.
remained in Mississippi, and the Chickasaws had The Choctaw received a sum of money out of Chick-
not ceded a four-mile-square parcel of land in Ten- asaw funds and ceded all of the land west of 100°
nessee to the United States. The removal of the Semi- longitude. The nations agreed to the establishment
nole Nation from Florida had started a costly war, of military forts and roads and to railroad and tele-
and even as late as the 1850s, small bands of Mika- graph rights-of-way.
suki Seminoles were still living in the Florida back- Similar jurisdictional and national disputes had
country and fighting American soldiers. arisen between the Creek and the Seminole. The
In 1852, the Chickasaw entered into negotia- United States was still attempting to remove the
tions with the federal government, primarily to set- remnants of the Seminole Nation in Florida to the
tle several of the tribe’s claims to particular lands. Indian Territory. Those Seminole who had been
Additionally, the cost of the Chickasaw removal had forcibly removed were moved, again because of lin-
far exceeded the funds allocated for the purpose. guistic and cultural ties, onto the lands of the Musco-
The treaty of 1852 was intended to clear up the cost gee Creek Nation. The Creek treaty of 1856 essen-
of removal, to clear the title of Chickasaw lands that tially ceded a tract of land to the Seminole. A
had not been ceded east of the Mississippi River, and sovereign Seminole Nation was thus established in
to address the allegations of corruption that had the hope of getting the Seminole in Florida to cease
resulted in the override of Chickasaw removal hostilities and migrate to the Indian Territory. The
funds. The Chickasaw Nation agreed to forgo claims Seminole Nation West, as it was called, would send a
to territories in the east for money to be held in trust delegation to Florida “to do all in their power to

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Reservations and Confederate and Unratified Treaties, 1850–1871 103

induce their brethren remaining [in Florida] to emi- The first Confederate treaties were negotiated
grate and join them in the west.” The usual conces- with the Creek, Choctaw, and Chickasaw in North
sions to the railroads, military posts, roads, and tele- Fork Town on the Canadian River in the Creek
graph services were also made. The effort to Nation. The Creek treaty, although concluded on
“induce” the Florida Seminole to remove was not July 10, 1861, nevertheless referred to the Seminole
successful. While some Seminole did, indeed, treaty of August 7 of the same year in order to clarify
migrate west after the treaty of 1856, the core of the the exact boundaries and jurisdictions of both
Mikasuki Seminole in the east remained in Florida to nations. A supplementary article was added to the
this day. convention to address the claims of the Apalachicola
By the end of March 1861, the United States had band. Under two previous treaties with the United
succeeded in securing the title to nearly all of its States, the Apalachicola still had reserves of land in
claimed territory west of the Mississippi River. Save Florida. The Confederacy acknowledged their claims
for a very large tract of land recognized as “the Great and agreed to pay for the claims and the property
Sioux Nation” on the northern plains, most of the the Apalachicola lost in their removal to the Indian
Indian Territory (present Oklahoma), a very large Territory. Remnants of the Apalachicola still living in
portion of New Mexico Territory, and smaller reser- Florida would be encouraged to move west and
vations dotting the land, the Americans now held all reunite with their kinsmen as part of the larger
of what would become the continental United States. Creek Nation. In the same supplement, the Seminole
The Cheyenne and Arapaho had ceded eastern Col- were guaranteed payments for their lost property
orado in February of 1861, and on March 6, the and land in Florida “in consequence of their hurried
united Sauk and Fox and Iowa Nations gave up title removal west.”
to most of Iowa and parts of Nebraska. The Choctaw and Chickasaw signed a single
treaty with the Confederacy. Concluded on July 12,
the treaty was lengthy and detailed. It contained
Confederate Treaties more than sixty articles, many of which focused on
All of the great land cessions of the 1850s con- clearing up the financial arrangements of land sales
tributed fuel to the oncoming holocaust of the Amer- and annuities. The Confederate government in Rich-
ican Civil War. The opening of the entire West Coast, mond essentially took on the U.S. debt to, and
Iowa, Minnesota, Utah, Colorado, Nebraska, Kansas, assumed the federal trust responsibility for, the
and much of New Mexico Territory meant the possi- Choctaw and the Chickasaw. Moreover, the Confed-
bility of bringing in several states into the union. eracy agreed to pay the Chickasaw close to $700,000
Most of these territories, in accordance with several as reimbursement for funds invested by the United
legal compromises, would not become slave-holding States in the state bonds of Maryland, Indiana, Ten-
states. Southern politicians, of course, saw the orga- nessee, Illinois, and Arkansas and in stocks issued by
nization of states such as Iowa, Minnesota, the Richmond and Danville railroad and the
Nebraska, and Kansas as a threat to their continued Nashville and Chattanooga railroad.
power in Congress, to their economic systems, and The Seminole treaty was agreed to in August at
to their sectional culture, all of which were built on the Seminole Council House, and the Confederate
chattel slavery. Cherokee convention was concluded in October at
When the Civil War broke out in April 1861, the Park Hill, Cherokee Nation. The Confederacy had
newly formed Confederate States actively began to thus made binding agreements with all of the so-
seek Native American allies. The Confederacy was called Five Civilized Tribes, establishing itself as the
especially interested in the Indian Territory, which protector of the Indian nations. All these treaties
could serve as a buffer between Union Kansas and offered the Native nations a good deal more than the
Confederate Texas, and with the mineral-rich New Union promised. Native soldiers, who were to be
Mexico and Arizona territories. Albert Pike, whose equipped by the South, would not have to fight
complete title was commissioner of the Confederate except in defense of their own territory. The Confed-
States to the Indians west of Arkansas, negotiated eracy would assume all of the Union’s debts and
nine treaties with twenty-one Native nations, at four annuity payments, in addition to a permanent allo-
different locations. All of the tribes with which Pike cation to pay for certain services, such as schools,
negotiated with were located at the time in the insane asylums, health care, and orphanages. The
Indian Territory. Native nations were also given the option of sending

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104 Historical Periods

delegates to the Confederate House of Representa- devastated. And the fighting continued there even
tives. Most importantly, perhaps, was that the Con- after the surrender at Appomattox.
federacy pledged its protection from invasion and Predictably, war fever engulfed the western ter-
affirmed each nation’s title to its lands in fee simple. ritories and states and led to the inflicting of bar-
The negotiations at Park Hill produced Confed- barous cruelties on the Native nations. War broke
erate treaties with the Osage, confederated Seneca out in Minnesota between the whites and the Santee
and Shawnee, and Quapaw Nations. Like the Sioux. Instead of attempting to use diplomacy,
treaties made with the Five Tribes, these agreements which perhaps could have averted the Santee war,
were somewhat formulaic. The treaties guaranteed the whites treated genuine Santee complaints as acts
annuities, the services of teachers, blacksmiths, and of rebellion, eventually trying and convicting many
landholdings. The Confederacy also agreed to sup- of the Santee men in a military court. California mili-
ply the tribes with arms to be used in their self- tiamen stormed into Arizona and New Mexico seek-
protection. The same kinds of guarantees were given ing rebels, only to set off a lengthy war with the
in treaties to a number of Native groups in the west- Apaches and Navajos. The old scout Kit Carson was
ern Indian Territory, including the Comanche, enlisted to carry on a frightful roundup of the
Wichita, Caddo, Waco, Tawakoni, Anadarko, Navajo, which led to their imprisonment at Fort
Tonkawa, and western Shawnee and Delaware Sumner. In 1864, the Colorado Volunteers attacked
tribes. Confederate agents obtained an agreement and slaughtered the Cheyenne at Sand Creek,
with the Comanche of the Staked Plains to offer a notwithstanding the fact that the Cheyenne were
treaty of friendship with the Kiowa, in order to stop peacefully living on the lands guaranteed to them in
completely raids into Texas. their 1861 treaty with the United States. The horror
On the surface, the Confederate treaties of the Sand Creek massacre produced a period of
promised a remarkably peaceful settlement for most general conflict between the Native nations of the
of the Native nations living in or near what is now Great Plains and the Union.
Oklahoma. The Confederate treaties not only estab- From a certain perspective, agents of the United
lished friendship between the nations and the Con- States were indeed attempting to ease the tensions
federacy but also between all the Native treaty sig- with several Native nations during the war and try-
natories. Each treaty contained an oath of “perpetual ing to deal with them diplomatically. The federal
peace and brotherhood” with all the Native nations government negotiated and ratified eighteen treaties
that made treaties with the Confederacy. The during the war. Between March 1862 and March
Comanche swore not to raid other Native nations; 1865, exactly three years, treaties were concluded
Cherokee and Osage pledged to end long years of with the Kansa, Ottawa, Chippewa, Nez Perce,
animosity; the Wichita promised to live in peace and Shoshone, Ute, Klamath, Modoc, Omaha, Win-
forgive those tribes that had threatened them in the nebago, and Ponca Nations. All these agreements
past. The Confederacy presumably obtained the included land cessions and further diminished the
safety of its largest state, Texas, and opened the rest territories of the tribes involved. Several established
of the Southwest for Confederate expansion. “permanent” reservations or removed the nations to
The Confederate-initiated peace in the Indian smaller concentrations of landholdings. Despite its
Territory, however, was not to be. Before the ink was focus on winning the Civil War, the United States
dry on the treaties, Creeks and Seminoles loyal to the was nevertheless still very much involved in secur-
Union attempted to escape to Kansas, and numerous ing title to new lands in the West.
Cherokee began to doubt the wisdom of allying When the fighting between the whites ended,
themselves with the South. Eventually, fighting the United States simply resumed its avowed con-
erupted between loyal and Confederate Indians all quest of the western territories, with a side trip to
over the territory. All-Indian regiments were raised renegotiate treaties with the nations that had signed
for both the Union and the Confederacy. These mili- on with the Confederacy. The United States
tary units were even to go into combat outside the extracted a heavy price from the nations that signed
territorial limits of the Native nations. The promise Confederate treaties, even though large factions
that the nations would not have to fight unless in within the tribes had repudiated them and had
defense of their own country was quickly made served in Union regiments. The Osage were forced
moot. Union and Confederate invasions from to cede most of their large reservation and confine
Kansas, Arkansas, and Texas left the Indian Territory themselves to the Indian Territory. For the land ces-

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Reservations and Confederate and Unratified Treaties, 1850–1871 105

sion, they were to receive the proceeds of the sale of judges and to have representation in the Cherokee
their lands in Kansas and Missouri, from which the national government. A U.S. court was to be estab-
federal government established a fund to build lished in the Indian Territory “nearest to the Chero-
boarding schools. Portions of Osage land were to be kee Nation” and was to have jurisdiction over all
directly handed over in fee simple to several individ- matters civil and criminal involving whites and
uals. Certain chiefs and mixed-blood citizens of the blacks. The Cherokee court system retained jurisdic-
Osage Nation were awarded direct payments of tion in Cherokee cases only. The Cherokee were also
Osage funds and grants of land. The Osage put required to take a census of the nation and to partici-
themselves under the protectorship of the United pate in an Indian Territory-wide general council in
States and agreed to be removed from the ceded order to regulate intercourse between the Indian
lands within a six-month period of time. The federal nations and with the “colonies of freemen resident in
government also extracted railroad rights-of-way said Territory.” The federal government obtained the
through Osage country. Finally, the Osage submitted agreement from the Cherokee to resettle “civilized”
to a new kind of treaty provision that stated, Indians in the Cherokee Nation and admit them as
“Should the Senate reject or amend any of the above citizens (a Delaware and a Shawnee band eventually
articles, such rejection or amendment shall not affect were so settled). More Cherokee land was to be
the other provisions of this treaty.” The Senate, in ceded for the future resettlement of several
other words, could change the treaty as it liked, “friendly” Native nations. The idea of resettling
whereas the Osage were bound to the agreement no “friendly” Native nations in the Indian Territory
matter what. marked the beginning of a new round of Indian
removal that would continue well into the 1870s,
with the relocation of the Ponca, the Pawnee, and
Reconstruction Treaties numerous other Native nations that had surrendered
The Five Civilized Tribes each agreed to reconstruc- their lands in Iowa, Minnesota, Kansas, Texas,
tion treaties that not only ceded territory but also Nebraska, the Dakotas, and as far away as New York
gave up land for the resettlement of Native nations and Oregon.
from Kansas, Nebraska, and Missouri. The Chero- The years between 1865 and 1868 produced a
kee, Choctaw, Chickasaw, Creek, and Seminole very long list of Native American treaties with the
agreed to abolish slavery and admit the freed slaves United States, some ratified, some simply set aside
to citizen status within their respective nations. The until more comprehensive agreements could be
new treaties gave away railroad rights-of-way but made. Four unratified but very important treaties
promised the nations that white intruders would be that fitted the category of stopgap measures were
removed from their territorial boundaries. the covenants that ended the Civil War in the Indian
The Cherokee treaty of 1866 was perhaps the Territory. On June 19, 1865, the principal chief of the
most comprehensive of the several “reconstruction” Choctaw Nation, Peter Pitchlynn, agreed to cease
treaties. It first contained a provision declaring the “acts of hostility” against the United States, and
Confederate treaty of 1861 null and void, even four days later, Confederate Brigadier General
though the Cherokees had already repudiated it in Stand Watie, who also had taken the title of princi-
1863. Notwithstanding this repudiation, the United pal chief of the Cherokee Nation, agreed to do the
States argued that the previously existing Cherokee same. The Chickasaw Nation capitulated on July 14.
treaties were nevertheless insufficient. A portion of In September, Union negotiators arranged what was
the Cherokee Nation was set aside for former slaves in effect an armistice between Union forces and
and for free blacks who had resided in the Cherokee Confederate and Union Indians in the Indian Terri-
prior to the Civil War, who individually could take tory. Emissaries from the Cherokee, Creek, Choctaw,
160-acre plots should they desire to move there Chickasaw, Osage, Seminole, Seneca, Shawnee,
within a span of two years. This land, however, was Quapaw, and Euchee peoples essentially agreed to
not to be “set apart until it shall be found that the accept protectorate status under the United States
Canadian district is not sufficiently large to allow and end any acts of aggression between themselves.
one hundred and sixty acres to each person desiring That these treaties were not ratified was very likely
to obtain settlement under the provisions of this arti- due to the fact that these groups were seen as com-
cle.” The residents of this reserve-within-a-reserve bat units rather than as Native nations. Thus, the
were enabled to elect their own local officers and treaties were thought to be more akin to the surren-

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106 Historical Periods

ders of the individual Confederate armies under War generals William Tecumseh Sherman and
Robert E. Lee, Joseph Johnston, and Edmund Kirby Alfred Terry, negotiated two of the most significant
Smith. Military leaders, especially those acting in treaties on the Great Plains: the treaties of Medi-
rebellion against the United States, were not heads cine Lodge in 1867 and Fort Laramie in 1868. Nei-
of state authorized to conduct formal international ther treaty ended the conflict completely. Their
relations. very existence, however, ultimately led to the end
Most of the unratified treaties of 1865, 1866, of formal treaty making altogether. In a very real
and 1867 were measures under which Native sense, the Native nations involved in these treaties
nations surrendered title to vast territories in the negotiated from a position of relative strength,
West. This round of treaty making was also an something that the United States was not ready to
effort on the part of the United States to restore its countenance.
claim to authority over the relations with Native The general warfare on the southern plains was
nations. All the Native nations were doubtless a series of strikes and counterstrikes conducted by
aware of the terrible internecine struggle the Amer- the United States and the southern branches of the
icans had just fought and were probably willing to Cheyenne and Arapaho and the Kiowa, Plains
deal with the winner in order to restore orderly Apache, and Comanche. The Cheyenne Dog Soldiers
relationships with the whites. These treaties, espe- had carried on an effective hit-and-run campaign
cially those made with the Paiute, Shoshone, Crow, against numerous civilian and military targets. The
several bands of the Apache, the Arikara, Mandan Kiowa and Comanche went on joint raids into Texas
and Hidatsa, the Assiniboine, the Brule and Oglala and New Mexico and, in the view of American offi-
bands of Lakota, and the Bannock, were very likely cials, were severely disrupting trade and immigra-
either not even submitted for ratification or had tion routes. Although there were a few pitched bat-
been made by unauthorized military personnel tles, mostly between small parties of whites and
seeking an immediate end to hostilities or by those Natives, by and large the war on the Southern Plains
seeking to earn a measure of fortune or fame for between 1865 and 1867 was a costly, confusing, and
negotiating the surrender of large tracts of Native bitter period of guerrilla warfare. The American
lands. press was continually calling for an end to Indian
Several agreements in the period also went depredations. The army could not find and defeat
unratified for the same reasons, because they were the tribes in decisive battle, but the continued con-
superseded by subsequent negotiations at the level flict had begun to wear the Native leaders down.
of formal treaties, or because they were simply nulli- When the Great Peace Commission proposed a
fied by certain events. War was the event that cer- meeting that would secure peace at Medicine Lodge
tainly voided most of the agreements and treaties, Creek in Kansas, many of the Native leaders came
ratified or not, with several Native nations of the with high expectations.
Great Plains and the Southwest. The Apache were Actually, three treaties were negotiated at Medi-
embroiled in a continuous war of attrition for their cine Lodge. The first was with the Kiowa and
mineral-rich lands in Arizona and New Mexico terri- Comanche. Basically, the price of peace was confine-
tories that ultimately would last until the 1880s. The ment to a relatively large reservation in southwest-
numerous agreements and ratified treaties made ern Indian Territory and the withdrawal of opposi-
with the individual bands of the Lakota Nation, the tion to the construction of roads and rail lines into
Yanktonai, the northern and southern branches of Colorado and New Mexico. Heads of families could
the Cheyenne and Arapaho Nations, the Kiowa, select tracts of land not exceeding 320 acres to
Plains Apache, and Comanche in 1865 were but engage in agricultural pursuits, the boundaries of
interludes of diplomacy in a lengthy conflict that which would be recorded in the “Kiowa and
began with the massacre at Sand Creek and engulfed Comanche land book.” The issuance of farming
all of the peoples of the Great Plains. implements, the services of a blacksmith and a
Because of the continuing violence, Congress physician, and the establishment of reservations
created the United States Indian Peace Commis- schools were promised. Two important provisions in
sion on June 20, 1867. The “Great Peace Commis- the treaty would eventually become causes for
sion,” headed by Commissioner of Indian Affairs renewed conflicts, one resulting in open warfare and
Nathaniel G. Taylor and including famous Civil the second in a famous court case.

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Reservations and Confederate and Unratified Treaties, 1850–1871 107

In Article 11 of the treaty, the Kiowa and the U.S. Army and forced its withdrawal from the
Comanche retained the right to hunt the territory forts. Like the Native nations of the southern plains,
south of the Arkansas River “so long as the buffalo the Lakota and Cheyenne had disrupted the build-
may range thereon.” With the building of roads and ing of the railroad through Nebraska. When the
rail lines, immigrant whites, the army, and sports- whites began to invade the Powder River country
men came to these hunting grounds in droves. The and erect the forts, however, the alliance launched an
great slaughter of the herds had already begun by all-out and decisive campaign. The army’s with-
the time the Native leaders signed the Medicine drawal prompted the call to diplomacy and the
Lodge agreements. Then, in 1871, a Pennsylvania peace conference at Fort Laramie in 1868.
tannery discovered that bison hides had commercial Again, three treaties were signed. The first was
value. The hides could be used not only for the man- with the Lakota bands, the Yanktonai, the Santee,
ufacture of leather goods but also as belting for and the Arapaho. The Great Peace Commission’s
machinery. Commercial buffalo hunting soon treaties were remarkably formulaic, worded nearly
became a leading industry in the West. The Kiowa the same as those signed at Medicine Lodge except
and Comanche saw the slaughter as a violation of for the detailed boundaries of the new Great Sioux
their guaranteed right to hunt, and a war to save the Nation in the Dakotas. The Crow Nation, although
buffalo broke out. It would last until well into the an enemy of the Lakota-led alliance, signed the sec-
1870s. ond treaty, which established their present reserva-
Article 12 of the treaty provided that no further tion in Montana. The Northern Arapaho and Chey-
cession of Kiowa-Comanche land could be made enne penned a separate treaty in which they agreed
without the agreement of three-fourths of the male to relinquish all land claims outside the southern
population of the tribes. When, thirty years later, Cheyenne-Arapaho Reservation in Indian Territory,
the federal government moved to allot the Kiowa- and lands were set aside for them in the Lakota
Comanche Reservation, leaving surplus land to be Reservations. The Cheyenne and Arapaho Nations,
set aside for white settlement, no three-fourths in short, were left with little choice except to live
majority tribal consent was sought or obtained. A either with their southern cousins or with their
lawsuit, launched on behalf of Kiowa chief Lone Lakota allies. Later, the northern Arapahos would be
Wolf, argued that allotment was in violation of moved to a reservation shared with their former ene-
Article 12 of the treaty. The Supreme Court, in Lone mies, the Shoshone, and the Cheyenne would be
Wolf v. Hitchcock, decided in 1903 that Congress had removed to the Indian Territory.
plenary authority over the tribes and could there- Four more ratified treaties were signed in 1868,
fore abrogate unilaterally the provisions of a prior with the Ute, Cherokee, Navajo, Shoshone-Bannock,
convention. and Nez Perce nations. In effect, they were the last
The second Treaty of Medicine Lodge was effec- treaties of their kind. In 1871, the House of Represen-
tively an act of union between the Kiowa, tatives added a proviso to the Indian Appropriations
Comanche, and Plains Apache. The Apache agreed Act that ended the practice of treaty making with
to join the Kiowa and Comanche on the reservation Native nations.
and to abide by the same provisions of their compre- Tom Holm
hensive convention. The third Treaty of Medicine
Lodge enjoined the southern Cheyenne and Arapa- References and Further Reading
hos to abide by nearly the same provisions as the Brown, Dee. 1970. Bury My Heart at Wounded Knee: An
Kiowa and Comanche but confined them to an area Indian History of the American West. New York:
Holt, Rinehart and Winston.
immediately to the north of the Kiowa-Comanche-
Cohen, Felix. 1958. Handbook of Federal Indian Law.
Apache Reservations. Albuquerque: University of New Mexico Press.
War on the northern plains centered on a Originally published 1942.
Lakota-led campaign against the illegally occupied Deloria, Vine, Jr., and Raymond J. DeMallie. 1999.
military forts along the Bozeman trail in Montana. Documents of American Indian Diplomacy, Treaties,
Under the Oglala leader Red Cloud, the alliance con- Agreements, and Conventions, 1775–1979. 2 vols.
sisting of all of the Lakota bands plus the Yanktonai Norman: University of Oklahoma Press.
Deloria, Vine, Jr., and Clifford M. Lytle. 1983.
and Santee Sioux and the northern branches of the
American Indians, American Justice. Austin:
Cheyenne and Arapaho Nations soundly defeated University of Texas Press.

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108 Historical Periods

Jones, Douglas C. 1966. The Treaty of Medicine Lodge: Price, Monroe E., and Robert N. Clinton. 1983. Law
The Story of the Great Treaty Council as Told by and the American Indian: Readings, Notes and
Eyewitnesses. Norman: University of Oklahoma Cases. Charlottesville, VA: The Michie Company
Press. Law Publishers.
Kappler, Charles J., ed. 1904. Indian Affairs: Laws and Prucha, Francis Paul. 1994. American Indian Treaties:
Treaties, vol. 2., Washington, DC: Government The History of a Political Anomaly. Berkeley, Los
Printing Office. Angeles, and London: University of California
Kickingbird, Kirk, et al. 1980. Indian Treaties. Press.
Washington, DC: Institute for the Development
of Indian Law.

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Statutes as Sources of Modern Indian Rights:
Child Welfare, Gaming, and Repatriation
A Statutory History of Federal Indian Policy

A
A
s important as treaties are in the history of the tribe. The Major Crimes Act (23 Stat. 385, 1985)
federal Indian policy, they are second in marked the first time Congress had unilaterally
importance to the statutes enacted by Con- extended federal criminal jurisdiction over crimes by
gress. Statutes, rather than treaties, have come to and against Indians.
define the scope of tribal authorities and immunities It was in this post-treaty era that the “plenary
and the rights of individual Indians. We know that power” of Congress over Indians and their property
statutes supersede treaties in importance from two was first articulated by the Supreme Court. Decades
pertinent facts. First, every treaty between the of failed tribal efforts to prevent encroachment on
United States and the Indian tribes has been broken. their homelands had left the Indians confined to
Second, the way Congress breaks a treaty with an reservations and unable to practice their traditional
Indian tribe is by enacting a statute to that effect. subsistence. They were left utterly dependent on the
Although it may seem odd that a treaty can be done rations and supplies that had been promised in the
away with so easily, the Supreme Court has held various treaties. Ironically, the Supreme Court, in
squarely that Congress has the power to break an upholding the constitutionality of the Major Crimes
Indian treaty unilaterally (Lone Wolf v. Hitchcock, Act, cited this tribal dependence on the United States
1903). The only legal issue of interest regarding the as the source of Congress’s power over the tribes:
breaking of Indian treaties in any particular case is
whether Congress actually intended to do so (e.g., These Indian Tribes are the wards of the nation.
United States v. Dion, 1986). They are communities dependent on the United
Federal Indian policy has been defined primar- States, dependent largely for their daily food;
ily by statute from the beginning. An early order of dependent for their political rights. . . . From
business for the first Congress was the enactment of their very weakness and helplessness, so
the first Trade and Intercourse Act (1 Stat. 137, 1790), largely due to the course of dealing of the
which forbade transactions affecting Indian land if federal government with them, and the treaties
Congress had not approved the transaction. The act in which it has been promised, there arises a
limited the tribes’ authority to dispose of their prop- duty of protection, and with it the power.
erty. Subsequent Trade and Intercourse Acts defined The power of the general government over
federal policy in the years following the adoption of these remnants of a race once powerful, now
the Constitution. The federal government alone weak and diminished in numbers, is necessary
would treat with the tribes, acquiring tribal land for to their protection, as well as to the safety of
the growing American nation while reserving land those among whom they dwell. It must exist in
for the ongoing needs of the tribes within the terri- that government, because it has never existed
tory of the United States. anywhere else; because the theater of its
The era of forced removal of tribes from the exercise is within the geographical limits of the
East, South, and Midwest also was defined by a con- United States; because it has never been denied;
gressional statute. The Indian Removal Act (4 Stat. and because it alone can enforce its laws on all
411, 1830) set the policy. The removal treaties the Tribes. (United States v. Kagama, 1886, pp.
affected the congressional policy, and many tribes 383–385)
were moved west.
With the congressionally mandated end of Having had its power confirmed by the Court,
treaty making in 1871 (16 Stat. 566, 1871), statutes Congress put its power to use in the Dawes General
became ever more important in defining Indian Allotment Act (26 Stat. 794, 1887). The Dawes Act
rights. By 1885, for example, Congress had taken to was the next of the defining statutes that established
itself the authority to subject Indians to federal court federal policy for decades. The dependence and
criminal processes for crimes committed by Indians poverty of the tribes, combined with their often-vast
against other Indians, regardless of the local law of reservations, led Congress to believe that the most

109
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110 Historical Periods

beneficent policy toward Indians was to convert allotment agreement for the opening of the Kiowa-
them into yeoman farmers and herders, to unsettle Comanche-Apache Reservation in Oklahoma Terri-
them from their tribal relations, and to bring non- tory. The Treaty of Medicine Lodge Creek of 1867
Indian settlers among them to teach them the Ameri- (Treaty with the Kiowa, Comanche, and Apache)
can agricultural way of life (Prucha 1984, 659–671). required that three-fourths of the tribal men must
To that end, Congress authorized the president, in all consent to any cession of the lands guaranteed by
cases where any tribe or band of Indians has been, or the treaty. Lone Wolf claimed that three-fourths had
shall hereafter be, located upon any reservation cre- not consented to the allotment agreement and that
ated for their use, “. . . whenever in his opinion any many of the consents had been obtained by fraud
reservation or any part thereof of such Indians is (Lone Wolf v. Hitchcock, 560–561). Notwithstanding
advantageous for agricultural and grazing purposes, the treaty provisions to the contrary, the Supreme
to cause said reservation, or any part thereof, to be Court held that Indian consent simply was not
surveyed, or resurveyed if necessary, and to allot the required. The Court did not consider whether Lone
lands in said reservation in severalty to any Indian Wolf’s claims were true, because “[p]lenary author-
located thereon” (24 Stat. 388). ity over the tribal relations of the Indians has been
Individual Indians were to receive from the exercised from the beginning, and the power has
tribal domains individual parcels of land for their always been deemed a political one, not subject to
use as farms and ranches. These allotted parcels be controlled by the judicial department of the gov-
were to be held in trust by the United States for a ernment” (ibid., 565). It did not matter that the
period of twenty-five years, during which the Indian treaty had been violated:
owners were expected to become self-sufficient
farmers and ranchers. Upon the expiration of the The power exists to abrogate the provisions of
trust period, they would receive patents in fee. After an Indian treaty, though presumably such
receiving their patents in fee, Indians were to “have power will only be exercised when circum-
the benefit of and be subject to the laws, both civil stances arise which will not only justify the
and criminal, of the State or Territory in which they government in disregarding the stipulations of
may reside” (24 Stat. 390). the treaty, but may demand, in the interest of
The tribal lands remaining after eligible Indians the country and the Indians themselves, that it
had received their allotments were to be opened for should do so. When, therefore, treaties were
settlement by non-Indians. Significantly, the open- entered into between the United States and a
ing of lands for non-Indian settlement was to be Tribe of Indians it was never doubted that the
accomplished by negotiation with the tribes. The power to abrogate existed in Congress, particu-
secretary of the interior was authorized to negotiate larly if consistent with perfect good faith
with the tribes for the purchase of their reservation towards the Indians. (ibid., 566)
lands “in conformity with the treaty or statute
under which such reservation is held” and “on such Noting that it had recently held that “full
terms and conditions as shall be considered just and administrative power was possessed by Congress
equitable between the United States and said tribe over Indian tribal property,” the Court concluded:
of Indians” (24 Stat. 389). The agreements negoti-
ated by the secretary would take effect when In effect, the action of Congress now
approved by Congress. complained of was but an exercise of such
Though nominally requiring the consent of the power, a mere change in the form of invest-
tribes, the Dawes Act was the centerpiece of a policy ment of Indian tribal property, the property of
of coercive assimilation featuring concerted federal those who, as we have held, were in substan-
efforts to destroy Indian political and social organi- tial effect the wards of the government. We
zation, Indian religion and language, and every- must presume that Congress acted in perfect
thing else that made Indians different from white good faith in the dealings with the Indians of
people. Even the requirement that the allotment which complaint is made, and the legislative
agreements conform to the relevant tribal treaties branch of the government exercised its best
proved to be empty. In 1903, the Supreme Court judgment in the premises. In any event, as
heard Kiowa chief Lone Wolf’s challenge to the Congress possessed full power in the matter,

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 111

the judiciary cannot question or inquire into zealous pursuit of his vision, Collier would alienate
the motives which prompted the enactment of many, both Indian and non-Indian, who made a
this legislation. (ibid., 568) profession of Indian policy. This and the diversion
of federal resources to World War II would ulti-
With the Court’s decision in Lone Wolf’s case, mately defeat the reorganization policy. Still, the
the ascendancy of Congress’s unilateral power in IRA had a dramatic impact in some tribal
Indian affairs was complete. Policy would henceforth economies and set the stage for the current policy
be made by Congress through statutes. Congress of Indian self-determination by establishing feder-
might seek the consent of the tribes, or it might not. ally sanctioned tribal institutions for the gover-
Henceforth, when Congress chose to seek tribal con- nance of reservation Indians and the provision of
sent, it did so out of benevolence, not legal necessity. services in Indian communities.
The allotment experiment and the whole policy But first would come the “termination” policy.
of coercive assimilation proved disastrous for the The failure of the reorganization policy to deal effec-
tribes. Few of the allotted Indians became self- tively with poverty on most reservations, along
sufficient, and Congress had to extend the trust with Collier’s oppressive tactics in pressing the
period. Most Indians never received their fee policy, alienated key members of Congress. At the
patents. Many who did receive their fee patents sim- same time, the impressive performance of Indian
ply were not prepared for the competitive American soldiers, sailors, airmen, and marines, as well as
economic system, and many soon lost their lands to Indian workers in war industries, suggested that all
sharp dealing by unscrupulous non-Indians, to poor that was needed for Indians to achieve self-
federal guardianship of their interests, or to simple sufficiency was to free them from the oppressive
misfortune (Prucha 1984, 763–813). Although Con- oversight of the Indian Bureau. Thus, Congress
gress optimistically made citizens of all Indians (43 would “terminate” the tribal-federal relationship
Stat. 253, 1924), the Indians’ poverty and their alien- and leave Indians free to make their way in the
ation from the larger society were not overcome. world without ongoing federal supervision of their
Their tribal systems of support for one another were affairs (Fixico 1986, 91–97).
deliberately suppressed, and they were destitute, Like its predecessors, the termination policy
ignorant, and ill. New policy was desperately was defined by congressional enactments: House
needed. Concurrent Resolution 108 (67 Stat. B132, 1953), and
The new policy arrived in the form of the Indian Public Law 83–280 (67 Stat. 588, 1953). H.C.R. 108
Reorganization Act of 1934 (48 Stat. 984, 1934), yet had no legal effect, but it set the stage for implemen-
another super-statute that defined an entire era of tation of the termination policy by declaring,
Indian policy. The IRA rejected all the assumptions
underlying the policies of the allotment era. Rather [I]t is the policy of Congress, as rapidly as
than suppressing tribal political institutions, tribal possible, to make the Indians within the territo-
governments were to be revitalized through consti- rial limits of the United States subject to the
tutions adopted by the tribes and approved by the same laws and entitled to the same privileges
secretary of the interior. Rather than promoting and responsibilities as are applicable to other
exclusively individual self-sufficiency, the IRA pro- citizens of the United States, to end their status
hibited further allotment of tribal lands and sought as wards of the United States and to grant them
to establish and capitalize tribal enterprises to all the rights and prerogatives pertaining to
develop reservation resources. Rather than trying to American citizenship. (p. B132)
destroy tribal cultures, Indians’ cultural practices
would be accepted, and their arts and crafts would H.C.R. 108 directed the secretary of the interior
be promoted. to prepare a report with legislative recommenda-
The architect of the new policy, Commissioner tions for implementing the policy. Praised as a policy
of Indian Affairs John Collier, had a vision of tribes of freeing Indians from federal supervision, termina-
as communal economic entities bound together by tion was also a withdrawal of federal programs
primordial spiritual understandings of the proper upon which the tribes had come to rely.
relationships among humans, nature, and the While waiting for the secretary to make recom-
sacred (Philp 1977, 1–3, 159–160). In his idealistic, mendations as to which tribes should be termi-

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112 Historical Periods

nated, Congress proceeded with another key The Indian nations had always been consid-
statute, Public Law 83–280. Consistent with the ered as distinct, independent political
theme of affording Indians the same privileges and communities, retaining their original natural
responsibilities as other citizens, Public Law 280 rights, as the undisputed possessors of the
made Indians in several states subject to the crimi- soil, from time immemorial . . . The very term
nal jurisdiction of the states in which their reserva- “nation,” so generally applied to them,
tions were located. Specifically, reservations in means “a people distinct from others.” . . .
Alaska, Minnesota (except the Red Lake Reserva- The words “treaty” and “nation” are words
tion), California, Nebraska, Wisconsin (except the of our own language, selected in our diplo-
Menominee Reservation), and Oregon (except the matic and legislative proceedings, by
Warm Springs Reservation) were subjected to the ourselves, having each a definite and well
authority of state courts. The other states were understood meaning. We have applied them
given the option of assuming civil and criminal to Indians, as we have applied them to the
jurisdiction if they chose. Tribal consent was not other nations of the earth. They are applied
required. to all in the same sense.
Termination began in earnest in 1954. That year
the Klamath, Menominee, and several other tribes As for their status as “dependent” nations, Mar-
were the subjects of termination legislation. In 1956, shall said that this dependence was not an utter sur-
legislation terminated three tribes in Oklahoma, and render of the sovereign rights of the tribes. To the
in 1958, legislation authorized the termination of contrary,
dozens of California rancherias. In general, termina-
tion meant the sale of the tribe’s land or transfer of [T]he settled doctrine of the law of nations is,
the land to a corporation owned by tribal members. that a weaker power does not surrender its
The trust status of the land was terminated, and it independence—its right to self-government, by
was subject to state taxation. Tribal members lost associating with a stronger, and taking its
their immunities to state laws and state taxes, and protection. A weak state, in order to provide for
federal programs that had long provided needed its safety, may place itself under the protection
social services to Indians were ended. In the case of of one more powerful, without stripping itself
the largest of the terminated tribes—the Klamath of the right of government, and ceasing to be a
and the Menominee—tribal members shortly fell state. . . .The Cherokee nation, then, is a distinct
into poverty and tribal society into disarray (Prucha community, occupying its own territory, with
1984, 1047–1056). boundaries accurately described, in which the
The best that can be said of the termination laws of Georgia can have no force, and which
policy is that the damage was limited both in scope the citizens of Georgia have no right to enter,
and in time. Fewer than three percent of the Indian but with the assent of the Cherokees them-
population belonged to terminated tribes, and by the selves, or in conformity with treaties, and with
early 1960s, the policy was halted. Many terminated the acts of congress. (Cherokee Nation v. Georgia,
tribes, including the largest ones, have since been 520)
restored to federal status as Indian tribes.
The history of congressional policy since 1832
has led the Court in a much different direction in
The Effects of Past Policy modern case law. The Court has been required to
on Modern Tribal Rights synthesize the wildly shifting policies of Congress
Modern statutes define tribal rights in ways much over two hundred years and to consider the conse-
more favorable to the tribes, as will be discussed in quences of past policies on tribal authority. This is no
detail following. The older statutes and the treaties, small challenge. How is the Court to reconcile policy
however, continue to define tribal rights, particularly themes as wildly different as treaty making and
when it comes to the jurisdiction of the tribes and coercive assimilation allotment, reorganization and
their courts. Chief Justice Marshall in 1831 famously termination?
defined tribes as “domestic, dependent nations” The truth is that they cannot be reconciled, yet
(Cherokee Nation v. Georgia, 17). The following year, the Court must still decide cases, and its recent deci-
Marshall pursued this thought, saying, sions tend to dispense with the idea of tribes as inde-

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 113

pendent states. Indeed, the Court, speaking through the history of congressional Indian affairs policy on
Justice Thurgood Marshall, remarked on the evolu- modern tribal authority, the Court declared, “‘Indian
tion of the Court’s Indian law doctrine in 1973: law’ draws principally upon the treaties drawn and
executed by the Executive Branch and legislation
This is not to say that the Indian sovereignty passed by Congress. These instruments, which
doctrine, with its concomitant jurisdictional beyond their actual text form the backdrop for the
limit on the reach of state law, has remained intricate web of judicially made Indian law, cannot
static during the 141 years since Worcester be interpreted in isolation but must be read in light
was decided. Not surprisingly, the doctrine of the common notions of the day and the assump-
has undergone considerable evolution in tions of those who drafted them” (206). Looking
response to hanged circumstances. . . . back over the 150 years of policy since the Worcester
[N]otions of Indian sovereignty have been decision, the Court found that Indian tribes were
adjusted to take account of the State’s deprived, over time, of any sovereign powers
legitimate interests in regulating the affairs of “inconsistent with their dependent status,” and that
non-Indians. . . .This line of cases was the three branches of the federal government shared
summarized in this Court’s landmark an “unspoken assumption” that tribes lacked the
decision in William v. Lee: “Over the years authority to try and punish non-Indians for viola-
this Court has modified (the Worcester tions of tribal laws.
principle) in cases where essential tribal The Oliphant rule has taken on a life of its own
relations were not involved and where the and is invoked in any circumstance in which tribes
rights of Indians would not be jeopardized. assert authority over persons not members of the
. . . Essentially, absent governing Acts of tribe. In Montana v. United States (1981), the Court
Congress, the question has always been ruled that the Crow tribe could not regulate hunting
whether the state action infringed on the and fishing by a non-Indian on land that was within
right of reservation Indians to make their the Crow Reservation but owned by non-Indians.
own laws and be ruled by them.” The Court went on to say that tribes have regulatory
(McClanahan v. State Tax Commission of jurisdiction over non-Indians on fee lands only in
Arizona, 171–172, quoting Williams v. Lee exceptional circumstances. In Duro v. Reina (1990),
1959) the Court said that tribes did not have jurisdiction
to try and punish Indians who are members of other
The Court went on to remark that “[T]he trend tribes.
has been away from the idea of inherent Indian sov- A few years later, in Strate v. A-1 Contractors
ereignty as a bar to state jurisdiction and toward (1997), the Court held that tribal courts have no juris-
reliance on federal pre-emption. . . . The modern diction over personal injury actions brought by non-
cases thus tend to avoid reliance on platonic notions Indians against non-Indians where the accident caus-
of Indian sovereignty and to look instead to the ing the injury took place on a state-owned highway
applicable treaties and statutes which define the lim- right-of-way within the reservation. In its decision in
its of state power.” Thus, unlike the findings in the Atkinson Trading Company, Inc. v. Shirley (2001), the
Worcester case, the existence of tribal authority does Court said that the Navajo Nation could not tax the
not defeat state authority, even on the reservations. It guests of a hotel located on non-Indian-owned land
is the exertion of federal power, mostly through con- within the reservation. And most recently, in Nevada
gressional statutes, that define tribal authority: “The v. Hicks (2001), the Court denied a tribal court juris-
Indian sovereignty doctrine is relevant, then, not diction over a trespass action against a state game
because it provides a definitive resolution of the warden alleged to have tortiously damaged property
issues in this suit, but because it provides a backdrop owned by an Indian and located on Indian trust land.
against which the applicable treaties and federal In each of these cases, the Court said that it was fol-
statutes must be read.” lowing the policies established by Congress in Indian
The effect of relegating Indian sovereignty to a treaties and Indian affairs statutes.
“backdrop” may be seen in subsequent cases limit- Even as the Court has restricted tribal authority
ing tribal authority. The mold for the future of tribal over non-Indians, it has consistently upheld the
jurisdiction was made in 1978 in Oliphant v. application of tribal law to tribal members and pre-
Suquamish Indian Tribe. Commenting on the effect of vented the application of state laws to reservation

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114 Historical Periods

Indians without explicit congressional consent. ceedings regarding custody of Indian children. Most
Thus, in Williams v. Lee (1959), the Court struck down interestingly, Congress has even employed its ple-
state jurisdiction over an action by a non-Indian nary power to reverse a Supreme Court decision in
against an Indian where the cause of action arose on one instance. Recall that the Court in 1990 ruled that
the reservation. Only the tribal court could hear the a tribe lacked criminal jurisdiction over an Indian
action. Similarly, in Fisher v. District Court (1976), the who was a member of a different tribe (Duro v. Reina,
Court ruled that state courts could not hear an adop- 1990). In 1991, Congress responded by confirming
tion proceeding where all parties were reservation the authority of tribes to try and punish nonmember
Indians; the jurisdiction of the tribal court was exclu- Indians for violations of tribal law (105 Stat. 646).
sive. In the area of criminal jurisdiction, the Court The Supreme Court recently upheld Congress’s
held in United States v. Wheeler (1978) that tribes retain authority to do so (United States v. Lara 2004).
inherent authority to try and punish their members The scope of tribal powers, therefore, depends
for violations of tribal law, even where the United less on the inherent sovereign authority of Indian
States has also exercised jurisdiction over the crime. tribes and more on treaties and congressional
States also have been consistently denied statutes. Although the treaties remain partially in
authority to tax and regulate reservation Indians. In effect and form the foundation for understanding
Warren Trading Post v. Arizona State Tax Commission subsequent developments, statutes have come to
(1965), the Court prohibited the application of state play a dominant role in most issues of tribal jurisdic-
sales taxes to purchases by Indians on the reserva- tion. Congress has not often employed its Indian
tion. Similarly, in McClanahan v. State Tax Commission affairs authority to explicitly define tribal jurisdic-
of Arizona (1973), the Court held that states may not tion in recent years, but when it has done so, the
tax income earned by Indians on their reservations. results have generally favored the tribes since the
States may tax non-Indians for their transactions on end of the termination era. This outcome is consis-
Indian land in some circumstances (Cotton Petroleum tent with the policies expressed in the flurry of
Corporation v. New Mexico, 1989), but they may not statutes passed since the end of termination. The
tax non-Indians where federal policies in support of pressing question in modern Indian policy is, To
tribal activities would be adversely affected by such what extent shall Congress use its plenary power to
taxation (White Mountain Apache Tribe v. Bracker, 1980; restore tribal authorities?
Ramah Navajo School Board v. Bureau of Revenue of New
Mexico, 1982).
Congress has rarely ventured into this jurisdic- Statutes and the Indian
tional maze in recent years, seemingly content to Self-Determination Policy
permit the Court to define the extent of tribal author- Unlike previous policy eras, no single statute can be
ity. From time to time, though, Congress steps in. said to be the centerpiece of current federal Indian
Recall that in 1953, Congress enacted Public Law policy. The sheer number of important statutes
83–280, which authorized states to assume jurisdic- passed in the last forty years prevents any single
tion over the reservations whether or not the tribes statute from dominating the discussion. Even as ter-
consented. In 1968, Congress enacted the Indian mination was losing favor, a new policy was being
Civil Rights Act (82 Stat. 77), which amended P. L. created. President Lyndon Johnson’s War on Poverty
280 to require tribal consent to any future extensions and Great Society legislation was not addressed pri-
of state jurisdiction. The ICRA also placed important marily to the problems of Indian tribes, but Indian
conditions on exercises of tribal powers by extend- concerns nevertheless received unusual—but appro-
ing many of the requirements of the Bill of Rights to priate—levels of attention. For example, tribal needs
tribal governments. were specifically addressed in the Economic Oppor-
Congress occasionally finds it necessary to con- tunity Act of 1964 (78 Stat. 508, 1964), which made
firm tribal authority over certain matters. In the tribes eligible for funding for youth programs, com-
Indian Child Welfare Act of 1978 (92 Stat. 3069), Con- munity action programs, and the Volunteers in Ser-
gress confirmed the exclusive authority of tribal vice to America (VISTA) program, among others.
courts over child custody matters involving reserva- The Neighborhood Youth Corps, the Job Corps, and
tion Indian children, and gave tribes and Indian par- Operation Head Start brought new programs and
ents extraordinary rights in certain state court pro- funding to the reservations. And unlike Bureau of

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 115

Indian Affairs and Indian Health Service programs, independent of Federal control without being
Office of Economic Opportunity (OEO) funds were cut off from Federal concern and Federal
administered directly by the tribes. Although OEO support. (Ibid., 566–567)
funds were hardly sufficient to make a dent in the
problem of Indian poverty, they had the collateral In the decade following President Nixon’s mes-
effect of increasing tribal governments’ capacity to sage, Congress enacted many statutes that funda-
administer federal programs and, in turn, increased mentally changed federal Indian policy. Congress’s
the desire of tribal governments to take over other increased level of activity was attributable in part to
federal programs for the reservations (Prucha 1984, the reestablishment of a Senate committee specializ-
1091–1100). ing in Indian affairs.
In March 1968, President Johnson proposed a The Indian Affairs Committees in both the
new Indian policy with a new goal, “a goal that ends House of Representatives and the Senate had been
the old debate about ‘termination’ of Indian pro- abolished in 1946. In 1975, Congress established a
grams and stresses Self-Determination; a goal that commission to review Indian policy. The American
erases old attitudes of paternalism and promotes Indian Policy Review Commission consisted of three
partnership self-help” (Public Papers of the Presidents senators, three U.S. representatives, and five Indian
1968–1969 1970, 335–344). The new policy was car- private citizens. The commission was charged with a
ried on and expanded in the Nixon administration. comprehensive review of all aspects of federal
Indian policy since the allotment era had suffered Indian law and policy, as well as the administration
from a belief that only two policy approaches were of Indian programs by federal agencies. In anticipa-
possible. One approach, represented by the allotment tion of receiving the commission’s report and recom-
and termination policies, held that Indians must be mendations, the Senate in 1977 established a tempo-
de-tribalized and all special federal programmatic rary select committee with legislative authority over
support withdrawn. The other, represented by the Indian affairs.
reorganization policy, held that tribal governments The Select Committee on Indian Affairs was
were the proper vehicles for Indian progress and that supposed to complete its work in only two years.
tribal governments required federal assistance and That proved unrealistic. As more and more issues
oversight that were often smothering. In 1970, Presi- came before the committee, the life of the commit-
dent Nixon attempted to take the best and reject the tee was extended, and the committee ultimately
worst of each of these policy traditions. In his Special was made permanent in 1984. The existence of a
Message on Indian Affairs on July 8 (Public Papers of Committee on Indian Affairs with broad legislative
the Presidents 1970 1971, 564–576), President Nixon and oversight authority played and continues to
repudiated both the termination policy and the pater- play a large role in the great volume of Indian
nalism that had long characterized the federal gov- affairs legislation that has been enacted since its
ernment’s relationship with the tribes. He concluded establishment.
that neither termination nor paternalism were accept- The Indian affairs statutes enacted since
able bases for modern policy: President Nixon urged a policy of Indian self-
determination have been impressive in breadth.
Self-Determination among the Indian people The last forty years have seen important legislation
can and must be encouraged without the threat on topics ranging from social services to cultural
of eventual termination. In my view, in fact, resource protection to environmental regulation to
that is the only way that Self-Determination tribal administration of federal programs and
can effectively be fostered. beyond. Indian policy has been changed funda-
This, then, must be the goal of any new mentally. Tribal governments now directly adminis-
national policy toward the Indian people to ter dozens of service programs previously adminis-
strengthen the Indian’s sense of autonomy tered by the Bureau of Indian Affairs and the Indian
without threatening this sense of community. Health Service. Tribal cultures that were sup-
We must assure the Indian that he can assume pressed so aggressively during the allotment era
control of his own life without being separated now enjoy federal protection. Tribes regulate reser-
involuntarily from the tribal group. And we vation environments with federal support. In large
must make it clear that Indians can become measure, tribes and their members have been

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116 Historical Periods

relieved of the overbearing federal presence of the more firm and certain than speculative claims rest-
past with no withdrawal of federal support, just as ing on treaties, executive orders, and statutes that
President Nixon proposed. A review of some of the created the reservations but made no specific provi-
more important statutes follows. sion for water. For Congress to take pains to ensure
tribal water rights in the arid West demonstrates a
strong commitment to the futures of these Indian
Restoration Acts and Land communities.
and Water Settlement Acts
The rejection of the termination has been quite thor-
ough in the last three decades. The Menominee tribe Tribal Administration
and the Klamath tribe, the largest of the terminated of Federal Programs
tribes, were restored to federal recognition in 1973 As noted previously, the Office of Economic Oppor-
(87 Stat. 770) and 1986 (100 Stat. 849), respectively. tunity provided funds directly to tribal govern-
Several other terminated tribes have been restored as ments to operate service programs on the reserva-
well (Cohen 2005, 168). tions in the 1960s. In 1975, Congress aggressively
Southern and eastern tribes that brought land expanded the concept to include virtually all pro-
claims seeking redress for wrongful takings of their grams administered by the Bureau of Indian Affairs
land in the eighteenth and nineteenth centuries were and the Indian Health Service. The Indian Self-
able both to resume their status as recognized Indian Determination Act of 1975 (88 Stat. 2006, 1975) pro-
tribes and to receive cash and property in settlement foundly changed the relationships between tribal
of their claims. Congress has enacted legislation set- governments and the two agencies most responsible
tling the claims of the Narragansett (92 Stat. 813, for the welfare of Indian tribes. Under the act, tribes
1978), Penobscot, Passamaquoddy and Maliseet (94 may request to contract with the agencies to admin-
Stat. 1785, 1980), Mashantucket Pequot (97 Stat. 851, ister programs on their reservations. The agencies
1983), Mohegan (108 Stat. 3501, 1994), and Gay Head can almost never deny a tribal request. The Self-
Wampanoag (101 Stat. 704, 1987) tribes, among oth- Determination Act was amended in 1994 by the
ers. These legislative settlements required the tribes Tribal Self-Governance Act (108 Stat. 4270), which
to give up their claims to many hundreds of thou- further expands tribal authority in administering
sands of acres; but, realistically, the tribes were quite service programs on reservations. Congress has also
unlikely to recover through the judicial process all of applied the Self-Determination Act model to pro-
the lands they claimed. In exchange for a theoretical grams administered by the Department of Housing
legal right to vast portions of the eastern United and Urban Development through the Native Ameri-
States, these tribes received statutory assurances of can Housing Assistance and Self-Determination Act
smaller but still valuable territories and ongoing of 1996 (110 Stat. 4016).
intergovernmental relationships with the United Congress has also made substantive reforms to
States. specific programs and created new programs for
Similarly, a number of western tribes sued to Indian communities. The Indian Health Care
redeem their rights to water for their members and Improvement Act of 1976 (90 Stat. 1400), the Indian
their lands. Since the onset of the self-determination Law Enforcement Reform Act of 1990 (104 Stat. 473),
era, Congress has enacted water rights settlements and the Indian Tribal Justice Act of 1993 (107 Stat.
for the Gila River Indian Community (118 Stat. 3499, 2004), established enforceable standards for impor-
2004), the Tohono O’odham Nation (96 Stat. 1274, tant health, public safety, and justice programs. The
1982), the Pueblo of Zuni (117 Stat. 782, 2003), the Indian Education Act of 1972 (86 Stat. 334), the
Paiute tribe of Utah (114 Stat. 737, 2000), the Yavapai- Indian Elementary and Secondary School Assistance
Prescott Indian tribe (108 Stat. 4526, 1994), the San Act (86 Stat. 334), the Indian Education Assistance
Carlos Apache tribe (106 Stat. 4740, 1992), the Fallon Act of 1975 (88 Stat. 2213), and the Tribally Con-
Paiute-Shoshone Indian tribes (104 Stat. 3289, 1990), trolled Community College Assistance Act of 1978
and the Salt River Pima-Maricopa Indian Commu- (92 Stat. 1325) reformed school programs serving
nity (102 Stat. 2549, 1988), among others. As with the Indian students and led to the establishment of
eastern land claims, these water settlements often dozens of tribal colleges, creating higher education
required tribes to abandon much larger, but still the- opportunities for reservation residents where none
oretical, claims to water. These statutory rights are had existed before. These programmatic reforms,

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 117

focusing as they do on the key areas of health, edu- This landmark legislation is discussed in detail
cation, and law and order, reflect the still-expanding that follows.
commitment of Congress to improving conditions
on reservations. Tribes were consulted throughout
the legislative process and helped make these impor- Environmental Regulation
tant improvements. Congress has also begun weaving tribal govern-
ments into national regulatory regimes, building
upon the inherent authority of the tribes over their
Economic Development members and their territories. Federal environmen-
Congress has also attempted to address the poverty tal regulatory laws generally require the Environ-
that has persisted since the traditional tribal mental Protection Agency (EPA) to establish and
economies were destroyed and the reservations enforce standards for various sources of pollution.
established in the nineteenth century. Much of The EPA may delegate primary enforcement author-
Indian country remains desperately poor, and no ity to the states. These federal laws generally apply
solution has yet been found for most of the largest to Indians, Indian tribes, and their reservations.
tribes. Still, progress has been made, and the tribes Before 1986, though, these statutes generally did not
themselves have been the primary engines of provide a regulatory role for Indian tribes, and
progress on this issue. According to the census states generally lack regulatory authority on Indian
bureau, from 2002 to 2004 the Indian poverty rate of lands, especially over Indians. Though the EPA had
24.3 percent was nearly twice that for all races (12.4 authority to regulate the environment on Indian
percent) (U.S. Bureau of the Census 2005). The tribes reservations, the system of delegating authority to
now have ongoing programmatic support from the local governments broke down when it came to
United States. In 1974, Congress enacted the Indian Indian reservations.
Financing Act (88 Stat. 77). The act created a direct Congress therefore amended several major fed-
loan program, a revolving loan guarantee fund, and eral environmental statutes between 1986 and 1990.
an interest subsidy program to help tribes and The Clean Water Act, the Comprehensive Environ-
Indian business owners borrow money for their mental Response, Compensation and Liability Act
enterprises. Congress has also attempted to improve (CERCLA), the Safe Drinking Water Act (SDWA),
management of both tribal and individually owned and the Clean Air Act were amended to permit the
lands held in trust for Indians by the United States. EPA to treat tribes in the same manner as it treats
The Indian Land Consolidation Act of 1983 (96 Stat. states, under certain circumstances and for certain
2517) and the American Indian Trust Fund Manage- purposes. The national regulatory system thus now
ment Reform Act of 1994 (108 Stat. 4239) constitute involves government-to-government partnerships in
earnest efforts by Congress to help the tribes make which the federal government, states, and Indian
the most of their single largest asset: fifty-five million tribes play important roles in the establishment and
acres of land. enforcement of environmental standards within and
In like manner, Congress has tried to help the near Indian reservations.
tribes increase their returns on the mineral resources In 1986, Congress amended the Safe Drinking
of the reservations. The most significant of these Water Act to authorize the EPA to treat tribes as
efforts, the Indian Mineral Development Act of 1982 states under the act (100 Stat. 642). The CERCLA was
(96 Stat. 1938), abandoned the outdated and also amended in 1986 so that tribes “shall be
exploitative model of leasing to outsiders in return afforded substantially the same treatment as a state”
for insufficient royalties, authorized more modern (100 Stat. 1706). Tribes can enter into cooperative
and creative relationships between tribes and min- agreements or contracts with the federal government
eral producers, and reduced federal involvement in to carry out remedial actions for hazardous waste
tribal decisions. releases and submit claims to the superfund for
In 1988, the most important economic devel- damages to tribal natural resources.
opment legislation of all was passed: The Indian Congress amended the Clean Water Act in
Gaming Regulatory Act (102 Stat. 2467). Since the 1987. Congress authorized the EPA administrator to
act’s passage, gaming has provided many tribal “treat an Indian tribe as a State” for purposes of
communities with badly needed discretionary establishing water quality standards and issuing
income to support tribal government operations. National Pollution Discharge Elimination System

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118 Historical Periods

permits (101 Stat. 76). The authorization for tribal tribal lands. The NAGPRA is discussed in detail that
regulation refers to waters “within the borders of follows below.
an Indian reservation.” Congress clearly antici- The statutes of the self-determination era have
pated that all areas within the reservation, includ- expanded tribal authority in numerous respects.
ing non-Indian-owned lands, would be subject to The statutes fall well short of acknowledging Indian
tribal regulation. tribes as independent sovereigns and thus are not
The Clean Air Act was amended in 1990 to like the early treaties made when there was some
authorize tribes to be treated as states for purposes equality in the federal-tribal relationship. Nor does
of the act (104 Stat. 2464). Like the amendments to Congress await formal tribal consent before creating
the Clean Water Act, the Clean Air Act authorizes statutory rights for Indians and tribes, as was true of
the treatment of tribes as states for purposes of the Indian treaties ratified by the Senate. However,
management and protection of air resources statutory rights do resemble treaty rights in some
“within the exterior boundaries of the reserva- respects. Nearly all the statutes discussed above,
tion.” especially those that permit tribes to assume respon-
The amendments to these federal environmen- sibility for federal programs, take effect at the
tal laws mark an important policy decision by the option of the tribes. For example, tribes may choose
Congress. Rather than leaving the tribes to endure to assume responsibility for BIA and IHS service
the application of federal or state laws on environ- programs, or they may require the agencies to con-
mental quality, Congress has created the opportunity tinue to provide the services directly.
for tribes to take that responsibility to themselves. Furthermore, the reestablishment of the Senate
Equally important, the statutes make tribes key Indian Affairs Committee and the ever-increasing
threads in a national regulatory tapestry, hardening and effective participation of tribes in American elec-
to at least some degree the place of tribes in Ameri- toral politics have created a congressional environ-
can federalism. By doing so, the statutes go beyond ment in which it is unlikely that major legislation
the treaties, which envisioned the reservations as affecting Indians would be enacted over broad
islands outside the reach of general federal laws, and tribal opposition. Indeed, most if not all of the self-
tribes as entities unable to participate directly in determination era statutes were passed at the urging
implementing national policy. of tribal governments. The plenary power of Con-
gress, so frequently engaged to the disadvantage of
the tribes in the late nineteenth and early twentieth
Cultural Resource Protection centuries, has regularly been employed for the bene-
From the end of treaty making in 1871 until the reor- fit of tribes in the last forty years. As discussed
ganization policy of the 1930s, the United States shortly, Congress has even used its plenary power to
engaged in an organized assault on tribal culture. create statutory Indian rights well beyond those of
Modern statutes, though, give favorable attention to other Americans.
Indian cultural and religious practices and lan-
guages. In 1978, Congress passed the American
Indian Religious Freedom Act (92 Stat. 469), which Examples of Statutes
expressed the policy that Native American religions Expanding and Protecting
were entitled to constitutional protection. In 1989, Important Tribal Rights
Congress passed the National Museum of the Amer- The importance of statutory rights in modern Indian
ican Indian Act (103 Stat. 1336), which established a reservation life is easily demonstrated by close
museum on the Capitol Mall in Washington for the examination of three self-determination era statutes:
presentation of Indian cultures. Finally, in 1990, the Indian Child Welfare Act (ICWA), the Indian
Congress passed the Native American Graves Pro- Gaming Regulatory Act (IGRA), and the Native
tection and Repatriation Act (NAGPRA, 104 Stat. American Graves Protection and Repatriation Act
3048), which required that human remains and (NAGPRA).
items of cultural significance in the possession of
federally funded museums be returned to the tribes, The Indian Child Welfare Act of 1978
and created tribal rights in the disposition of human The Indian Child Welfare Act (92 Stat. 3269) is a
remains and cultural items found on federal and prominent example of modern Indian affairs legisla-

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 119

tion. Tribes were concerned with the practices of dren or terminations of parental rights of Indian par-
state and private social service agencies regarding ents are required to be transferred to tribal courts,
Indian children. These agencies were placing Indian unless either parent objects or unless the state court
children into white foster families and adoptive finds “good cause” not to do so. In proceedings that
families with little or no regard for the wishes of the remain in state court, the child’s tribe has the right to
tribes or the cultural needs of the children. In intervene at any point in the proceeding. Impor-
response to these tribal concerns, Congress passed a tantly, judgments of Indian tribal courts in child wel-
statute that gave Indian tribes the primary role in fare matters must be afforded full faith and credit by
the placement of Indian children, as well as granting all federal, state, and tribal courts.
the tribes extraordinary authority to prevent state The rights of tribes and Indian parents are fur-
courts from making such determinations in certain ther expanded in provisions regarding involuntary
circumstances. custody and termination proceedings in state courts.
Section 2 of the act recites a series of congres- For example, if a state court “knows or has reason to
sional findings that served as the backdrop for the know that an Indian child is involved,” the Indian
substance of the legislation. Acknowledging the fed- parent or custodian and the Indian child’s tribe must
eral responsibility to Indian people and the special be notified of the proceedings and of their right of
place of children in ensuring the future of the tribes, intervention (92 Stat. 3071). No placement or termi-
Congress found that nation proceedings can be held until at least ten days
after the parent or custodian and the tribe are noti-
[A]n alarmingly high percentage of Indian fied. If they request additional time to prepare for
families are broken up by the removal, often the proceeding, that request must be granted. Fur-
unwarranted, of their children from them by ther, if an Indian parent or custodian is indigent, the
nontribal public and private agencies and that state court must appoint counsel.
an alarmingly high percentage of such children When seeking a foster care placement or termi-
are placed in non-Indian foster and adoptive nation of parental rights regarding an Indian child,
homes and institutions; and . . . the States, the agency seeking the placement or termination
exercising their recognized jurisdiction over must demonstrate that “active efforts have been
Indian child custody proceedings through made to provide remedial services and rehabilitative
administrative and judicial bodies, have often programs designed to prevent the breakup of the
failed to recognize the essential tribal relations Indian family and that these efforts have proved
of Indian people and the cultural and social unsuccessful” (92 Stat. 3072). A foster care placement
standards prevailing in Indian communities can be ordered only if the court finds, by clear and
and families. (92 Stat. 3269) convincing evidence, “that the continued custody of
the child by the parent or Indian custodian is likely
Based on these findings, Congress declared that to result in serious emotional or physical damage to
federal policy would henceforth be to “protect the the child.” A termination of parental rights requires
best interests of Indian children and to promote the an even stronger showing. Termination may not be
stability and security of Indian tribes and families” ordered unless the evidence shows beyond a reason-
(ibid). This would be done by promoting the place- able doubt “that the continued custody of the child
ment of Indian children in foster or adoptive homes by the parent or Indian custodian is likely to result in
that “reflect the unique values of Indian culture,” serious emotional or physical damage to the child”
and by providing assistance to Indian tribes in the (ibid.).
operation of child and family service programs. Even when an Indian parent is seeking a volun-
The ICWA went further still, providing for tary foster care placement or termination of parental
broad tribal jurisdiction over placements of Indian rights, the ICWA makes sure that the parents’ and
children and, extraordinarily, allowing tribes to pre- the tribes’ rights are protected. Such consent must
empt states in the exercise of such authority in many be in writing. The presiding judge must certify that
circumstances. Indian tribes were given exclusive the “consequences of the consent were fully
jurisdiction over custody matters involving Indian explained in detail and were fully understood by
children living on reservations. Further, state court the parent or Indian custodian,” and that the parent
cases involving foster care placements of Indian chil- or custodian either “fully understood the explana-

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120 Historical Periods

tion in English or that it was interpreted into a lan- approved, or specified by the Indian child’s
guage that the parent or Indian custodian under- tribe; (iii) an Indian foster home licensed or
stood” (ibid). Moreover, consents to termination approved by an authorized non-Indian
made prior to or within ten days of birth are invalid licensing authority; or (iv) an institution for
under the act. In the case of a foster care placement, children approved by an Indian tribe or
an Indian parent or custodian may withdraw con- operated by an Indian organization which has a
sent at any time, and the child must be returned. program suitable to meet the Indian child’s
Similarly, even where a parent has agreed to a ter- needs. (ibid.)
mination of parental rights or to an adoptive place-
ment of an Indian child, the consent may be with- If the child’s tribe establishes a different order
drawn at any time prior to the entry of a final decree of preference, the state court is obliged to follow
of termination or adoption. If consent is withdrawn, that order “so long as the placement is the least
the child must be returned to the Indian parent or restrictive setting appropriate to the particular
custodian. Finally, even after a final decree is needs of the child” (ibid). The preferences of the
entered, a parent may withdraw consent for up to child and the Indian parent are to be considered as
two years if he or she can show that the consent was well.
obtained through fraud or duress. If the court finds Congress also permitted tribes to undo state
such fraud or duress, “the court shall vacate such jurisdiction created by Public Law 280.
decree and return the child to the parent” (ibid.) Under the ICWA, tribes in Public Law 280 states
Furthermore, if a foster care placement or termina- may reassume jurisdiction over child custody pro-
tion of parental rights is done in violation of the ceedings that have been under the authority of state
ICWA provisions described above, the Indian parent courts. A tribe must petition the secretary of the inte-
or custodian and the Indian child’s tribe may peti- rior and present a plan for exercising such jurisdic-
tion to have the placement or termination invali- tion. The secretary then may approve the plan if,
dated. Most extraordinarily, perhaps, the child need after considering factors specified in the ICWA, he or
not actually be a member of an Indian tribe to be an she finds that the tribe’s plan is feasible.
“Indian child” under the act. A child need only be The ICWA is significant in several respects. First
“eligible for membership in an Indian tribe and . . . and foremost, the specific ousting of the states from
the biological child of a member of an Indian tribe” jurisdiction over custody proceedings involving
for the ICWA to apply (92 Stat. 3270). Indian children on the reservations is an aggressive
State court adoptive placements and foster care use of Congress’s plenary power over Indian affairs.
and preadoptive placements must also comply with Some states and private social service agencies
substantive standards in the act. Section 105 of the objected to the ICWA, but Congress did not yield,
ICWA requires that, in any adoptive placement of an choosing rather to defer to tribal opinions in this sen-
Indian child under State law, “a preference shall be sitive area. Further, the ICWA actually overrides the
given, in the absence of good cause to the contrary, substantive law of the states. Any state law that is
to a placement with (1) a member of the child’s inconsistent with the ICWA is essentially replaced by
extended family; (2) other members of the Indian the relevant ICWA provisions in proceedings involv-
child’s tribe; or (3) other Indian families” (92 Stat. ing an Indian child. Family law matters have tradi-
3073). tionally been the exclusive domain of the states, and
Furthermore, any child accepted for foster care for Congress to intervene so directly to supersede
or preadoptive placement must be placed in “the state law in such matters was unprecedented. The
least restrictive setting which most approximates a plenary power that was used to harm tribal interests
family” and in which any special needs of the child a century ago has become a formidable force in the
may be met (ibid.). The child must be placed within defense of tribal interests now.
reasonable proximity to his or her home. Finally, in Finally, the ICWA seeks to empower tribal gov-
any foster care or preadoptive placement, ernments to assume responsibility for the critical
functions of the child welfare system. In addition to
a preference shall be given, in the absence of the tribal rights listed above, the act authorized the
good cause to the contrary, to a placement establishment of programs at the Department of the
with—(i) a member of the Indian child’s Interior to assist tribes in exercising their authorities
extended family; (ii) a foster home licensed, under the act. The Department of the Interior was

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 121

authorized to make grants to tribes to help them to ing on Indian lands [and] the establishment of Fed-
establish licensing systems for foster homes; to oper- eral standards for gaming on Indian lands . . . are
ate and maintain facilities for counseling and treat- necessary to meet congressional concerns regarding
ing Indian families; to employ child welfare profes- gaming and to protect such gaming as a means of
sionals in tribal courts; to provide education relating generating tribal revenue” (ibid.). To carry out the
to child and family assistance; and to provide legal federal regulatory role, the act establishes the
representation for Indian families involved in child National Indian Gaming Commission, a three-
custody proceedings. Even off-reservation Indian member regulatory commission whose chairman is
organizations are eligible for federal funding for pro- appointed by the president and approved by the
grams designed to help assure the appropriate place- Senate.
ment of Indian children under the ICWA. In these The IGRA establishes a three-tier system for the
respects and more, the ICWA marked a major turn- regulation of Indian gaming. Class I gaming, which
ing point in the willingness of Congress to use its includes social games and traditional tribal gam-
Indian affairs power in ways that favor tribes, even bling activities, is regulated exclusively by the tribes
over the objections of states and private interests. For without federal or state involvement. Class II gam-
these reasons, it is noteworthy legislation that ing, including bingo and similar games (and elec-
demonstrates the extent to which tribal rights and tronic versions of such games) and card games that
powers are increasingly the result of federal statutes. are specifically permitted by state laws, are subject to
both tribal and federal regulation. Class III gaming,
which includes most casino gaming and pari-mutuel
The Indian Gaming wagering such as at horse and dog tracks, requires
Regulatory Act of 1988 the approval of the state in which a tribe’s gaming
The Indian Gaming Regulatory Act of 1988 (102 Stat. activity is located and is subject to a complex of fed-
2467) is the most important Indian affairs legislation eral, state, and tribal regulatory laws.
in recent times. Unlike other self-determination era The act permits tribes to engage in Class II
statutes, the IGRA was passed largely in response to gaming if the gaming is located in a state “that per-
concerns raised by state governments rather than the mits such gaming for any purpose by any person,
tribes. In Cabazon Band of Mission Indians et al. v. Cali- organization or entity (and such gaming is not oth-
fornia (1987), the Supreme Court held that Indian erwise specifically prohibited on Indian lands by
tribes could conduct commercial gambling on their Federal law)” (102 Stat. 2472). The tribe must adopt
reservations so long as similar activities were an ordinance regulating gaming, and the National
allowed off the reservations by state law. Because Indian Gaming Commission (NIGC) must approve
states permitted many types of gambling—from the ordinance. The tribal ordinance is required to
state lotteries to horse racing to charitable bingo to provide, with only rare exceptions no longer rele-
commercial casinos—the Cabazon decision opened vant, that the tribe will be the sole owner of the
the door to many forms of commercial Indian gam- gaming enterprise. Further, the tribal ordinance
ing. Both Congress and the states were concerned must limit the uses of tribal gaming revenues to five
that tribal gaming would be vulnerable to criminal specific purposes: “(i) to fund tribal government
activity. The tribes, on the other hand, were anxious operations or programs; (ii) to provide for the gen-
to defend their right to conduct gaming with a mini- eral welfare of the Indian tribe and its members; (iii)
mum of federal and state interference. to promote tribal economic development; (iv) to
In October 1988, Congress enacted the IGRA. donate to charitable organizations; or (v) to help
The act bore the marks of compromise; fine distinc- fund operations of local government agencies” (102
tions were drawn between different types of gam- Stat. 2473). Tribes may pay out gaming revenues to
bling, and regulatory authority over Indian gaming tribe members on an individual basis if the tribe
was divided among the states, the tribes, and the prepares a plan for allocating revenues to the pur-
federal government. The purposes of the act poses described above and the secretary has
included providing a federal statutory basis for the approved the tribal plan.
conduct of Indian gaming, empowering the tribes to The tribal ordinance must require annual out-
regulate gaming to prevent infiltration by organized side audits of the gaming enterprise and must
crime, and declaring “that the establishment of ensure that “the construction and maintenance of the
independent Federal regulatory authority for gam- gaming facility, and the operation of that gaming is

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122 Historical Periods

conducted in a manner which adequately protects nance that meets all the requirements of a Class II
the environment and the public health and safety” gaming ordinance as described above, and the ordi-
(ibid). The tribe must also establish a system for nance must be approved by the commission. The
licensing gaming employees and conducting back- great difference in the regulation of Class II and
ground investigations of “primary management offi- Class III gaming is that Class III gaming may be con-
cials” and “key employees” of the gaming enter- ducted only in conformance with an agreement
prise. The tribe must notify the NIGC of the results entered into by the tribe and the state in which the
of background investigations before issuing gaming gaming activity is to take place.
licenses and again when it issues a license. If the This concession to state authority was a contro-
NIGC provides to a tribe reliable information estab- versial provision of the act when it was passed and
lishing that a manager or other key employee is not remains controversial. Tribes sought to prevent state
eligible for a license, the tribe must suspend the regulation completely, whereas states wanted to reg-
employee’s license and, after a hearing, may revoke ulate all gaming on the reservations, including Class
the license. These requirements are to ensure that II gaming. Congress did not seem inclined to estab-
licenses are not granted to persons “whose prior lish a federal regulatory agency to oversee all of the
activities, criminal record, if any, or reputation, details of Class III gaming activities, and so the mat-
habits, and associations pose a threat to the public ter was left to agreements—“compacts”—entered
interest or to the effective regulation of gaming, or into by tribes and states.
create or enhance the dangers of unsuitable, unfair, The development of a tribal-state gaming com-
or illegal practices and methods and activities in the pact begins with a tribe’s request to a state to com-
conduct of gaming” (ibid). mence negotiations. If the negotiations proceed well
Contracts for the management of tribal gaming and produce an agreement, all that remains is for the
enterprises must be approved by the commission. secretary of the interior to approve the compact. The
Prior to approving such a contract, the chairman of act authorizes tribes and states to include provision
the commission must verify that the contract con- relating to
tains certain terms ensuring that the tribe can ade-
quately regulate the gaming enterprise and that the (i) the application of the criminal and civil laws
tribe’s financial interests are protected. The contract and regulations of the Indian tribe or the State
must provide for a minimum guaranteed payment that are directly related to and necessary for, the
to the tribe. The term of the contract cannot exceed licensing and regulation of such activity; (ii) the
five years, unless the chairman of the commission allocation of criminal and civil jurisdiction
finds that the capital investment required for the between the State and the Indian tribe necessary
enterprise and the expected profit justify a longer for the enforcement of such laws and regula-
term of up to seven years. If the manager is to be tions; (iii) the assessment by the State of such
compensated with a percentage of the revenues from activities in such amounts as are necessary to
the enterprise, the manager may receive only such a defray the costs of regulating such activity: . . .
percentage of the net revenues as the chairman of the (vi) standards for the operation of such activity
NIGC determines to be “reasonable in light of sur- and maintenance of the gaming facility,
rounding circumstances” (102 Stat. 2480). The man- including licensing; and (vii) any other subjects
agement fee may not exceed 30 percent of net rev- that are directly related to the operation of
enues, unless the chairman finds that the capital gaming activities. (102 Stat. 2476)
investment and income projections for the enterprise
justify an additional fee of up to 40 percent of net The authorization to states and tribes to com-
revenues. pact for the application of state laws and state juris-
The regulatory process for Class II gaming diction is extraordinary and perhaps unprecedented
under the IGRA thus is comprehensive. The process in federal Indian affairs statutes.
for tribes wishing to engage in Class III gaming is If the parties agree to a compact, there is little
more complicated still. First, the gaming enterprise reason to object to the process. If the negotiations do
must be located in a state “that permits such gaming not go well, however, the process becomes complex
for any purpose by any person, organization, or and controversial. At the request of tribes, Congress
entity” (102 Stat. 2475). The tribe must adopt an ordi- added a requirement to the IGRA that a state, once

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 123

asked to start negotiations, must negotiate “in good tribes to operate casinos on an exclusive basis in the
faith.” Should a state fail to do so, the tribe had the state. Furthermore, the Department of the Interior
option, 180 days after the request for negotiations, to has issued regulations that establish a process by
sue the state in federal district court. If the court which a tribe can petition the secretary to issue Class
found that the state failed in its obligation to negoti- III gaming procedures for the tribe if the state refuses
ate in good faith, the court could initiate a process in to negotiate in good faith and asserts its sovereign
which the state and tribe were given 60 days to com- immunity to prevent the federal courts from inter-
plete a compact. If they failed to agree in that time, vening.
they were required to submit their “last best offer” to A major consequence of the IGRA—and the
a mediator appointed by the court. The mediator most ironic one—is that, because they were required
then selected the compact “that best comports with to get the states’ permission to conduct Class III
the terms of” the IGRA and submitted the compact gaming, the tribes have had to develop great influ-
to the parties (102 Stat. 2478). If the state consented ence in state political systems. Those processes have
to the compact selected by the mediator within 60 been swayed by the financial resources the tribes
days, the compact was submitted to the secretary for can now devote to their political efforts. The tribes
approval. If the state did not consent, the secretary objected strongly to the requirement of state
was authorized to consult with the tribe and to issue approval for Class III gaming, yet that requirement
“procedures” under which the tribe would be per- has led them to unprecedented influence in state
mitted to conduct Class III gaming. politics.
In the years shortly following enactment of the Violations of the act can result in criminal penal-
IGRA, this process produced some extraordinary ties. Any gambling on reservations not in compli-
results. Wisconsin and Connecticut, for example, ance with the act is a federal crime. Theft from an
faced with the possibility of a court-ordered media- Indian gaming establishment is criminal as well;
tor, and the possibility that the secretary and the theft of more than $1,000 can be punished with a fine
tribes would determine how Class III gaming could of up to $250,000 and a jail term of up to ten years.
be conducted on the reservations, entered into com- Theft by employees and holders of gaming licenses
pacts that have left tribes with the exclusive right to can be punished with a fine as large as $1,000,000
own and operate casinos in those states. and a jail term of twenty years.
As other states faced the same challenge, how- The Indian Gaming Regulatory Act is water-
ever, resistance to the IGRA compacting process shed legislation in many respects. Despite its obvi-
increased, and the states were ultimately successful ous importance when it was being considered, few
in upsetting the process entirely. In Seminole Tribe of could have anticipated the truly phenomenal effects
Florida v. Florida (1996), the Supreme Court ruled that it would have in many Indian communities.
the IGRA provision permitting suits in federal courts Between 1995 and 2004, revenues from Indian gam-
against the states was a violation of the states’ sover- ing grew from $5.4 billion to $22.6 billion. Approxi-
eign immunity. mately 225 tribes in twenty-eight states are engaged
Although this appeared to give the states the in gaming. Some 250 Class III tribal-state gaming
upper hand in dealing with the tribes on gaming compacts have been approved. Gaming is by far the
issues, the decision in the Seminole case has not largest source of revenue for many Indian tribes.
slowed the explosive growth in Indian gaming. This bounty, however, is not evenly distributed
Instead, tribes have managed to use state political across Indian country. Two hundred tribes in Alaska,
processes and institutions to gain the compacts for example, are unable to engage in Indian gaming.
required by the IGRA, even where state officials are Tribes in Utah are also unable to conduct gaming
reluctant to enter into compacts. In California, for because all gaming is prohibited in Utah. Further,
example, tribes persuaded voters to enact changes to most of the largest reservations—such as those in
the California constitution that left the tribes with North and South Dakota and Montana—do not gen-
the exclusive right to operate slot machines in the erate large amounts of revenue due to their rural
state. In New Mexico, the tribes gained sufficient locations and the endemic poverty on those reserva-
influence in the state’s electoral and political tions. Thus, although gaming has been a successful
processes to persuade the legislature to enact and the economic development strategy, most of the largest
governor to approve a new state law that permits tribal populations do not receive much benefit.

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124 Historical Periods

Still, the Indian Gaming Regulatory Act has Indian control over cultural items obtained from
widely succeeded in its objective to assist tribes in such lands after the effective date of the statute.
their efforts at economic development and self- With respect to Native American cultural items in
sufficiency. The IGRA is different from most Indian the possession of federal agencies and museums,
affairs legislation in an important sense. The IGRA the NAGPRA imposes specific duties on the muse-
seemed to invite state authority onto the reserva- ums and agencies, most notably the duty to prepare
tions in a major way, over the objections of many inventories of Native American human remains
tribes. Indeed, it seemed to some that the tribal vic- and associated funerary objects and summaries of
tory in the Cabazon case was undone in large part in the other categories of cultural items, and the
the IGRA. In truth, however, the Court’s Cabazon duty to repatriate all of these items to culturally
decision was thin soil in which to grow the major affiliated tribes or descendants upon request.
industry that Indian gaming has become. It was only The first key provision of the NAGPRA relates
with Congress’s ratification of the tribes’ right to to cultural items found on federal or tribal lands. If
offer commercial gaming that the industry had a human remains and associated funerary objects
firm and comprehensive legal basis. Through inge- were or are discovered on federal or tribal lands
nuity and persistence, the tribes overcame the hur- after November 1990, they belong to the lineal
dles created in the IGRA and have become important descendants of the deceased. (An associated funerary
players in a major American industry. object is an object from a grave, and both the object
and the human remains “are presently in the posses-
sion or control of a Federal agency or museum.” The
The Native American Graves term also includes items exclusively made for burial
Protection and Repatriation Act purposes or to contain human remains (104 Stat.
The Native American Graves Protection and Repatri- 3048). If the lineal descendants cannot be determined
ation Act (104 Stat. 3048) is another example of the (or if the objects are unassociated funerary objects,
creation and protection of extraordinary rights for sacred objects, or objects of cultural patrimony), and
Indians. Like the IGRA, the NAGPRA was enacted they are discovered on tribal land, they belong to the
over the objection of powerful interests unaccus- tribe on whose land they were discovered or to the
tomed to being disadvantaged for the benefit of tribe with the closest cultural affiliation with the
Indians. In the case of NAGPRA, museums, univer- object. (An unassociated funerary object is an object
sities, and other elements of the scientific communi- from a grave, and the remains are not in the posses-
ties were deeply concerned that congressional limits sion or control of the federal agency or museum, but
on their access to Indian graves, antiquities, and the objects can be identified as related to specific
cultural objects would inhibit the search for knowl- individuals or families or to known human remains
edge of the origins and experience of humans in or as having been removed from a specific burial site
North America. Despite these concerns, Congress of an individual culturally affiliated with a particular
enacted a statute intended to empower Indians Indian tribe.)
and Indian tribes seeking to protect the graves of If objects are discovered on federal lands, they
their ancestors and culturally significant property belong to the tribe whose aboriginal territory (as
from becoming—or remaining—possessions of non- determined by a judgment of the Indian claims com-
Indian institutions. mission or the court of claims) included the land
The NAGPRA is meant to ensure that “cultural where the objects were discovered, unless another
items” of Native Americans are protected. Cultural tribe demonstrates a stronger cultural relationship to
items include human remains, “funerary objects” the objects, in which case they belong to the tribe
(objects placed in a human grave), “sacred objects” with the stronger cultural relationship. This estab-
(objects needed by religious leaders for traditional lishment of Indian ownership of such items on fed-
religious practices), and “cultural patrimony” eral lands is extraordinary in U.S. law. Generally, the
(objects with historical, traditional, or cultural owner of land also owns property found on or in the
importance to a Native American group or culture, land. The NAGPRA, however, permits Indians and
as opposed to property owned by an individual Indian tribes to assert ownership of cultural items
Native American) (104 Stat. 3048–49). The NAG- found on federal lands.
PRA increases the protections for Indian graves The statute also protects Indian ownership
located on federal and tribal lands and provides for interests of cultural items found on federal or tribal

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 125

lands by allowing their excavation or removal only cal locations, means, and period of acquisition and
with a permit issued under the Archaeological cultural affiliation of the objects, where readily
Resources Protection Act, and only after consultation ascertainable.
with the appropriate tribe. If the cultural items are The purpose of these inventories and sum-
on tribal land, the tribe must grant consent. The tribe maries is to provide information to Indians and
or individual still owns the objects in accordance Indian tribes and permit them to determine whether
with the provisions just discussed. they wish to have the remains and objects returned
If cultural items are inadvertently discovered, to them. The NAGPRA establishes standards and
the discoverer must notify the head of the federal procedures for the repatriation of such remains and
agency responsible for the land, as well as the appro- objects to the individual Indian or tribe to whom
priate Indian tribe, of the discovery. Furthermore, if they rightfully belong. In the case of human remains
the discovery occurred in the course of an activity and associated funerary objects the cultural affilia-
such as construction, mining, logging, or agriculture, tion of which has been established, federal agencies
the activity must cease in the area of the discovery. and museums are required, upon the request of a
The discoverer must make a reasonable effort to pro- known descendant of the Native American or of the
tect the items discovered before resuming the activ- tribe, “to expeditiously return such remains and
ity and must provide notice to the appropriate fed- associated funerary objects” (104 Stat. 3045). Simi-
eral agency and Indian tribe. The activities may larly, with respect to unassociated funerary objects,
resume only after the head of the relevant federal sacred objects, or objects of cultural patrimony, if the
agency or the appropriate Indian tribe has certified cultural affiliation is shown, the museum or agency
that notice has been received. Moreover, cultural must return the objects to the appropriate tribe.
items inadvertently discovered belong either to indi- Even where the cultural affiliations of remains
vidual Indians or to the appropriate Indian tribe, as and objects have not been established or the items
described previously. not included, in the inventories or summaries
The NAGPRA also is concerned with cultural required by the statute, tribes may still have a right
items in the possession of federal agencies and to repatriation. In cases involving human remains
museums. The act was passed largely in response to and funerary objects, a tribe may request repatria-
the fact that thousands of Native American remains tion if it can show cultural affiliation “by a prepon-
were in museum collections, many of them as the derance of the evidence based upon geographical,
result of a systematic effort to collect such remains in kinship, biological, archaeological, anthropological,
the nineteenth century. The NAGPRA requires fed- linguistic, folkloric, oral traditional, historical, or
eral agencies and museums that receive federal other relevant information or expert opinion” (ibid.)
funding (which is nearly every major museum in the Upon such a showing, the museum or federal
country) and have among their collections Native agency must return the item. Furthermore, sacred
American human remains and associated funerary objects and objects of cultural patrimony must be
objects to compile an inventory of such items. They returned where
are further required, to the extent possible based on
information in their possession, to identify the geo- (A) the requesting party is the direct lineal
graphical and cultural affiliation of the items. After descendant of an individual who owned the
compiling the inventory, if the agency or museum sacred object; (B) the requesting Indian tribe . . .
determines the cultural affiliation of any particular can show that the object was owned or
Native American human remains or associated controlled by the tribe . . . ; or (C) the requesting
funerary objects, the agency or museum must notify Indian tribe . . . can show that the sacred object
the affected tribes within six months of completing was owned or controlled by a member thereof,
the inventory. provided that in the case where a sacred object
Similarly, federal agencies and museums was owned by a member thereof, there are no
receiving federal funding must provide a written identifiable lineal descendants . . . or the lineal
summary of any unassociated funerary objects, descendants, upon notice, have failed to make a
sacred objects, and objects of cultural patrimony claim for the object. (104 Stat. 3054–55)
that they have in their collections. The summary
must describe the scope of the collection, the kinds Several issues can arise when a museum or
of objects included, and references to the geographi- agency is requested to repatriate items, and Congress

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126 Historical Periods

anticipated many of these circumstances. For exam- with known lineal descendants and Indian tribes, in
ple, repatriation can be delayed in the case of items order to assist them in making their claim for repatri-
that are “indispensable for completion of a specific ation. The statute even puts aside any state laws that
scientific study, the outcome of which would be of might prevent a museum from repatriating cultural
major benefit to the United States” (104 Stat. 3055). items by immunizing museums from claims of
The return of such items may be delayed until ninety “breach of fiduciary duty, public trust, or violations
days after the date on which the scientific study is of state law that are inconsistent with the provisions
completed. of this chapter” (104 Stat. 3055).
It is also possible that a museum or agency Finally, the statute imposes penalties. For exam-
believes that it came into possession of an item legiti- ple, a museum that fails to comply with the statute
mately. In the case of requests for repatriation of may be assessed a civil penalty by the secretary of
unassociated funerary objects, sacred objects, or the interior. Persons who knowingly purchase, sell,
objects of cultural patrimony, the NAGPRA sets out or transport Native American human remains can be
the method for establishing the validity of the fined or even jailed for up to a year; a subsequent
parties’ claim to the item. The party requesting repa- violation increases the possible jail time to five years.
triation must present evidence supporting the Similar punishments can be imposed for selling,
request, and if the evidence, standing alone, would purchasing, or transporting cultural items obtained
support a finding that the agency or museum did in violation of the act.
not have the right of possession, then the agency or The NAGPRA is a remarkable piece of legisla-
museum must return the objects “unless it can over- tion in several respects. First, it created (or perhaps
come such inference and prove that it has a right of restored) Indian property interests in items that had
possession to the objects” (ibid.). An agency or long since passed out of Indian possession. A few
museum has a right of possession when an item was decades ago, there was little reason to believe that
obtained with the voluntary consent of an individual Congress might act with sensitivity to ancient claims
or group that had authority to give the item. Muse- to cultural items, but the modern era of Indian policy
ums and agencies have a right of possession to made such a thing possible. The fact that Congress
human remains and associated funerary objects that overrode the resistance of powerful and influential
were obtained “with full knowledge and consent of scientific institutions such as universities and muse-
the next of kin or the official governing body of the ums, creating affirmative obligations for these insti-
appropriate culturally affiliated Indian tribe” (104 tutions to return precious objects from their collec-
Stat. 3050). tions to the tribes, is no small matter, either. Above
More than one party might request remains or all, Congress’s rejection of the tendency of science to
objects. In such a case, if the agency or museum can- treat human remains as mere objects of study, and
not clearly determine which requestor should Congress’s alignment of itself and the law with the
receive the item, the agency or museum may retain idea of affording these Indian ancestors the dignity
the item until either the requesting parties agree that many tribal traditions demand, suggest that the
upon its disposition or the dispute is resolved by a prevailing approach to law and policy in Indian
court. The NAGPRA also established a review com- affairs has changed dramatically from the bad old
mittee composed of representatives from tribal com- days of allotment and termination.
munities and from museums and scientific groups to
monitor the implementation of the statute and
advise the secretary. One of the committee’s duties is Conclusion
to “facilitate resolution of disputes” among Indian Statutes have defined U.S. policy toward the tribes
tribes, lineal descendants, museums, and agencies from the beginning. The treaties were extensions of
(104 Stat. 3056). This is a voluntary process and, the statutes in that they represented the application
although the committee’s recommendations are not of prevailing policy to particular tribes and particu-
legally binding, they can be introduced as evidence lar situations. Since the end of treaty making in 1871,
in later litigation. though, statutes have come to dominate the defini-
The NAGPRA imposes an affirmative duty on tion of tribal rights and the rights of individual Indi-
agencies and museums to share whatever informa- ans as members of tribes. The Supreme Court has
tion they possess regarding an object in question said that Congress has plenary power over tribes

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Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 127

and Indian property. The federal courts do not con- Mississippi Band of Choctaw Indians v. Holyfield, 490
sider the wisdom or good faith of congressional U.S. Reports 30 (1989).
enactments, so tribal rights exist at the sufferance of Moe v. Confederated Salish and Kootenai Tribes, 425
Congress. U.S. Reports 463 (1976).
Montana v. United States, 450 U.S. Reports 544
Federal policies have swung wildly over the
(1981).
years from policies designed to assimilate Indians by Nevada et al. v. Floyd Hicks et al., 533 U.S. Reports 353
coercion and dismantle tribal institutions to policies (2001).
intended to empower tribal governments. The con- Oliphant v. Suquamish Indian Tribe, 435 U.S. Reports
sequence of inconsistent policies is a body of statu- 191 (1978).
tory law and factual circumstances that has led the Ramah Navajo School Board v. Bureau of Revenue of
Supreme Court to limit the authority of tribal gov- New Mexico, 458 U.S. Reports 832 (1982).
Seminole Tribe of Florida v. Florida, 517 U.S. Reports
ernments, particularly over nonmembers. While the
44 (1996).
Court has simultaneously prevented the application Strate v. A-1 Contractors, 520 U.S. Reports 438 (1997).
of state laws to Indians on their reservations, the United States v. Dion, 476 U.S. Reports 734 (1986).
result is a patchwork of jurisdictional authorities, United States v. Kagama, 118 U.S. Reports 375 (1886).
with tribes, states, and the United States all having United States v. Lara, 541 U.S. Reports 193 (2004).
extensive authority, depending on the particular cir- United States v. Anthony Robert Wheeler, 435 U.S.
cumstances. Reports 313 (1978).
The current policy of self-determination for Warren Trading Post v. Arizona Sate Tax Commission,
380 U.S. Reports 685 (1965).
tribal governments is also driven by statutes. The
White Mountain Apache Tribe v. Bracker, 448 U.S.
statutes of the self-determination era differ from Reports 136 (1980).
their predecessors in important respects. Most Williams v. Lee, 358 U.S. Reports 217 (1959).
notably, the existence of a Senate Committee on Worcester v. Georgia, 31 U.S. Reports 515 (1832).
Indian Affairs that is responsive to tribal interests Statutes
and the growing tribal activism in federal and state American Indian Religious Freedom Act of 1978.
electoral politics has given the tribes a strong voice Public Law 95-341 August 11, 1978–92 Stat.
in the federal legislative process. The result is that 469. 95th Congress. Joint Resolution [S.J. Res.
102]. 42 USC 1996
modern statutes quite often are passed at the urging
Indian Child Welfare Act of 1978, Public Law
of tribes, and few if any major statutes are passed in 95–608, 92 U.S. Statutes at Large 3269,
the face of strong tribal opposition. November 8, 1978.
Thus, the extraordinary authority of the Con- Indian Civil Rights Act of 1986, Public Law 90–284,
gress over Indian tribes—the plenary power—right 82 U.S. Statutes at Large 77, April 11, 1968.
now is being used in ways that favor tribes and in Indian Education Act, Public Law 92–318, 86 U.S.
ways that the tribes favor. None can say for how Statutes at Large 334, June 23, 1972.
long this will be true. It does appear, however, that Indian Education Assistance Act, Public Law
93–638, 88 U.S. Statutes at Large 2213, January
tribal statutory rights will continue to exist, and
4, 1975.
quite possibly to expand, for the indefinite future. Indian Elementary and Secondary School
Kevin Gover Assistance Act, Public Law 92–318, 86 U.S.
Statutes at Large 334, June 23, 1972.
References and Further Reading Indian Financing Act of 1974, Public Law 93–262,
Court Cases 88 U.S. Statutes at Large 77, April 12, 1974.
Atkinson Trading Company, Inc. v. Shirley, 532 U.S. Indian Gaming Regulatory Act, Public Law
Reports 645 (2001). 100–497, 102 U.S. Statutes at Large 2467,
Cabazon Band of Mission Indians et al. v. California, 480 October 17, 1988.
U.S. Reports 202 (1987). Indian General Allotment Act (Dawes Act),
Cherokee Nation v. Georgia, 30 U.S. Reports 1 (1831). Chapter 119, 24 U.S. Statutes at Large 388,
Cotton Petroleum Corporation v. New Mexico, 490 U.S. February 8, 1887.
Reports 163 (1989). Indian Health Care Improvement Act, Public Law
Duro v. Reina, 495 U.S. Reports 676 (1990). 94–437, 90 U.S. Statutes at Large 1400,
Fisher v. District Court, 425 U.S. Reports 696 (1976). September 30, 1976.
Lone Wolf v. Hitchcock, 187 U.S. Reports 553 (1903). Indian Land Consolidation Act of 1983, Public Law
McClanahan v. State Tax Commission of Arizona, 411 97–459, 96 U.S. Statutes at Large 2517, January
U.S. Reports 164 (1973). 12, 1983.

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128 Historical Periods

Indian Law Enforcement Reform Act, Public Law Debo, Angie. 1940. And Still the Waters Run: The
101–379, 104 U.S. Statutes at Large 473, August Betrayal of the Five Civilized Tribes, Repr.,
18, 1990. Princeton, NJ: Princeton University Press, 1973.
Indian Mineral Development Act of 1982, Public Law Deloria, Vine, Jr. 1969. Custer Died for Your Sins: An
97–382, 96 U.S. Statutes at Large 1938, December Indian Manifesto. Repr., Norman: University of
22, 1982. Oklahoma Press, 1988.
Indian Reorganization Act, Chapter 576, 48 U.S. Eadington, William S., and Judy Cornelius, eds.
Statutes at Large 984, June 18, 1934. 1998. Indian Gaming and the Law. Reno:
Indian Self-Determination Act, Public Law 93–638, 88 University of Nevada, Reno Bureau of
U.S. Statutes at Large 2206, January 4, 1975. Business.
Indian Tribal Justice Act, Public Law 103–176, 107 Fixico, Donald L. 1986. Termination and Relocation:
U.S. Statutes at Large 2004, December 3, 1993. Federal Indian Policy, 1945–1960. Albuquerque:
Indian Trust Fund Management Reform Act of 1994, University of New Mexico Press.
Public Law 103–412, 108 U.S. Statutes at Large Frickey, Philip P. 1996. “Domestic Federal Indian
4239, October 25, 1994. Law,” 81 Minnesota Law Review 31.
National Museum of American Indian Act, Public Goldberg, Carole E. 1975. “Public Law 280: The
Law 101–185, 103 U.S. Statutes at Large 1336–47, Limits of State Jurisdiction over Reservation
November 28, 1989. Indians,” 22 University of California-Los Angeles
Native American Graves Protection and Repatriation Law Review 535.
Act, Public Law 101–601, 104 U.S. Statutes at Kersey, Harry A., Jr. 1996. An Assumption of
Large 3048, November 16, 1990. Sovereignty: Social and Political Transformation
Native American Housing Assistance and Self- among the Florida Seminoles 1953–1979. Lincoln:
Determination Act of 1996, Public Law 104–330, University of Nebraska Press.
110 U.S. Statutes at Large 4016, October 26, 1996. Light, Steven Andrew, and Kathryn R. L. Rand. 2005.
Tribal Self-Governance Demonstration Project Act, Indian Gaming and Tribal Sovereignty: The Casino
Public Law 102–184, 67 U.S. Statutes at Large 589, Compromise. Lawrence: University Press of
August 15, 1953. Kansas.
Tribal Self-Governance Act of 1994, Public Law Mason, W. Dale. 2000. Indian Gaming: Tribal
103–413, 108 U.S. Statutes at Large 4250, October Sovereignty and American Politics. Norman:
25, 1994. University of Oklahoma Press.
Tribally Controlled Community College Assistance Murphy, Mary Lynn. 2001. “Assessing NAGPRA:
Act of 1978, Public Law 95–471, 92 U.S. Statutes An Analysis of Its Success from a Historical
at Large 1325, October 17, 1978. Perspective,” 25 Seton Hall Legislative Journal
Books and Articles 499.
Banner, Stuart. 2005. How the Indians Lost Their Land: Newton, Nell Jessup. 1984. “Federal Power over
Law and Power on the Frontier. Cambridge, MA: Indians: Its Sources, Scope, and Limitations,”
Harvard University Press. 132 University of Pennsylvania Law Review 195.
Bernstein, Alison R. 1991. American Indians and World Philp, Kenneth R. 1977. John Collier’s Crusade for
War II: Toward a New Era in Indian Affairs. Indian Reform 1920–1954. Tucson: University of
Norman: University of Oklahoma Press. Arizona Press.
Canby, William C. 2004. American Indian Law in a Pommersheim, Frank. 1989. “The Crucible of
Nutshell, 4th ed. St. Paul, MN: West. Sovereignty: Analyzing Issues of Tribal
Clinton, Robert N. 1976. “Criminal Jurisdiction over Jurisdiction,” 31 Arizona Law Review 329.
Indian Lands: A Journey through a Prucha, Francis Paul. 1962. American Indian Policy in
Jurisdictional Maze,” 18 Arizona Law Review 503. the Formative Years: The Trade and Intercourse Acts
Cohen, Felix S. 1941. Handbook of Federal Indian Law. 1790–1834. Cambridge, MA: Harvard
Washington, DC: Government Printing Office. University Press.
Cohen, Felix S. 2005. Handbook of Federal Indian Law. Prucha, Francis Paul. 1984. The Great Father: The
Newark, NJ: LexisNexis. United States Government and the American
Culin, Stewart. 1975. Games of the North American Indians. Unabridged ed. Lincoln: University of
Indians. New York: Dover. Nebraska Press, 1995.
Daily, David W. 2004. Battle for the BIA: G.E.E. Public Papers of the Presidents of the United States:
Lindquist and the Missionary Crusade against John Lyndon B. Johnson, 1968–1969. 1970.
Collier. Tucson: University of Arizona Press. Washington, DC: Government Printing Office.
Debo, Angie. 1984. A History of the Indians of the Public Papers of the Presidents of the United States:
United States, Repr., Norman: University of Richard Nixon, 1970. 1971. Washington, DC:
Oklahoma Press. Government Printing Office.

www.abc-clio.com ABC-CLIO 1-800-368-6868


Statutes as Sources of Modern Indian Rights: Child Welfare, Gaming, and Repatriation 129

Riley, Angela R. 2002. “Indian Remains, Human Tsosie, Rebecca. 1997. “Negotiating Economic
Rights: Reconsidering Entitlement under the Survival: The Consent Principle and Tribal-
Native American Graves Protection and State Gaming Compacts under the Indian
Repatriation Act,” 34 Columbia Human Rights Gaming Regulatory Act,” 29 Arizona State Law
Law Review 49. Journal 25.
Riley, Thomas. 1988. “Federal Conservation Statutes Tweedy, Ann. 2005. “Using Plenary Power as a
and the Abrogation of Indian Hunting and Sword: Tribal Civil Regulatory Jurisdiction
Fishing Rights: United States v. Dion,” 58 under the Clean Water Act after United States v.
University of Colorado Law Review 699. Lara,” 35 Environmental Law 471.
Schlosser, Thomas P. 2001. “Tribal Civil Jurisdiction U.S. Bureau of the Census. 2005. “Insurance, Poverty,
over Nonmembers,” 37 Tulsa Law Review 573. and Health Insurance Coverage in the United
Suagee, Dean. 1998. “Tribal Self-Determination and States: 2004,” Current Population Reports, 60–229.
Environmental Federalism: Cultural Values as a Washington, DC: Government Printing Office.
Force for Sustainability,” 3 Widener Law Washburn, Kevin. 2001. “Recurring Problems in
Symposium Journal 229. Indian Gaming,” 1 Wyoming Law Review 427.
Taylor, Scott A. 1997. “An Introduction and Overview Washburn, Wilcomb E. 1986. The Assault on Indian
of Taxation and Indian Gaming,” 29 Arizona Tribalism: The General Allotment Law (Dawes Act
State Law Journal 251. of 1887). Repr., New York: Krieger.
Tellinghuisen, Roger A. 1989. “The Indian Child Washburn, Wilcomb E. 1995. Red Man’s Land/White
Welfare Act of 1978: A Practical Guide with Man’s Law: The Past and Present Status of the
[Limited] Commentary,” 34 South Dakota Law American Indian, 2nd ed. Norman: University of
Review 660. Oklahoma Press.
Thomas, David Hurst. 2001. Skull Wars: Kennewick, Wilkins, David E. 2006. American Indian Politics and
Archaeology, and the Battle for Native American the American Political System, 2nd ed. Boston:
Identity. New York: Basic Books. Rowman and Littlefield.

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Treaty
Responsibility
and Reserved
Rights

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Property: Land and Natural Resources

T
reaties were the major mechanism for the Indians pushed onto Indian lands, established settle-

T
massive transfer of land from American Indi- ments and farms, and prospected for gold and other
ans to European Americans that has occurred valuable natural resources.
in North America over the last three centuries. Even Between 1850 and 1870, much of the rest of the
when the United States ceased making formal continental United States passed out of Indian
treaties in 1871, treaty substitutes continued to be hands. Unlike removal, treaties with tribes west of
used to formalize the dispossession of Indian land the Mississippi set aside small pockets of their tradi-
into the twentieth century. Land and the natural and tional lands as reservations. These treaties generally
biological resources associated with it were the included limited payments of goods and services for
Indian assets of the greatest commercial value to the land ceded by the tribes. In the 1870s, the federal
non-Indians; consequently, they have been the government began the process of allotting small
greatest source of conflict. Loss of land increasingly parcels of land to individual Indian heads of house-
made traditional land-based economies impossible, holds, ostensibly to assimilate Indian people into the
undermining tribal social and political structures dominant society through small-scale farming. After
that were consistent with these traditional ways of the small allotments were assigned, the remaining
life and jeopardizing traditional religious practices tribal land was deemed surplus and sold. Over time,
that were deeply tied to tribal homelands. many Indian families were forced to sell their allot-
The first property negotiations between Euro- ments to pay debts and property taxes. More than
peans and Indians on the eastern coast of North two-thirds of the remaining tribal lands were lost to
America were conducted by individual settlers to Indian ownership by the time the allotment process
obtain small parcels of Indian land, generally in was formally ended in 1934 by the Indian Reorgani-
return for trade goods. However, European govern- zation Act.
ments, through their colonial administrations, Although negotiated by the United States from
quickly took control of the land acquisition process an increasing position of power, treaties embodied
by claiming sovereign rights as sole purchasers of the core legal concept that tribes retained inherent
Indian land. A major basis of these preemptive rights to the lands they did not cede—that is, treaties
claims was that tribes were sovereigns, and negotia- did not give Indian tribes land; instead, treaties were
tions between sovereigns were conducted through grants of land by tribes that also reserved lands for
treaties. The U.S. government continued to claim the the practical use of their people. The term reservation
sole right to acquire Indian land parcels, which were comes from these reserved rights that were not
then placed in the public domain, divided into specifically relinquished in treaty provisions.
smaller parcels, and subsequently sold to individual Reserved rights and the federal government’s
non-Indians. responsibility as trustee for those rights have been
The eras of early federal Indian policy are critical to ongoing tribal legal claims to water, tim-
labeled by the key processes through which Indian ber, and minerals, as well as fossil fuels important to
people were dispossessed of their land: removal, energy production. These rights are also key issues
establishment of reservations, and allotment. After in individual Indian claims against the federal gov-
the War of 1812, when tribal alliances were no longer ernment for mismanagement of oil, gas, and mineral
critical to the political balance of power among the royalties from their land. The termination policy of
colonial European nations, the United States forcibly the federal government in the 1950s and early 1960s
removed entire tribes from their eastern homelands was intended to end tribal ownership of land. Part of
to Indian Territory, west of the Mississippi River. the local impetus for termination of reservation trust
Removal was part of the increasingly coercive status was the interest of lumber companies in the
process used by the federal government to force timber on reservation lands.
tribes to relinquish their land. Although removal From the 1940s through the 1970s, the U.S.
was formalized through treaties that guaranteed the Indian Claims Commission attempted to redress the
remaining land rights of tribes, these guarantees illegal and uncompensated takings of Indian land.
were increasingly ignored when new groups of non- Much of the Claims Commission’s work involved

133
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134 Treaty Responsibility and Reserved Rights

determination of the fair market value of lands at the did not put pressures on the access to and use of
time they were ceded, mostly through treaties. How- land. However, as more non-Indians took more
ever, from a tribal perspective, the value of land as land, conflicts increased.
the foundation of society and culture and as having U.S. Indian policy increasingly pushed Indian
sacred meaning cannot be fully compensated by people toward the most sedentary lifestyles that
money. required the least amount of land. This policy was
used to justify the continual renegotiation and dictat-
ing of the provisions of treaties and the resulting
Traditional Land-Based reduction of tribal landholdings. The federal govern-
Economies and Land Tenure ment intended to force Indian people to assimilate
American Indian peoples had long-standing knowl- into non-Indian society and to participate in the mar-
edge of the land on which they lived and from which ket economy. This goal was to be accomplished by
they made a living. As with most indigenous peo- reducing Indian landholdings and making it impos-
ples throughout the world, American Indian cultural sible to continue the more land-extensive economies
identity was closely associated with the specific that prevailed in much of Native North America. As
ecosystems and landmarks of tribal homelands. The he negotiated the Louisiana Purchase with France in
rich and varied ecosystems of the North American 1803, Thomas Jefferson wrote that tribes would learn
continent provided the basis for the diverse tradi- to use less land and that settlers would need more
tional economies of the Native peoples. These sys- (Jennings 1975). These policies were often justified
tems for making a living included hunting and gath- by rhetoric about the wastefulness of nonsedentary
ering, harvesting of fish, and agricultural production ways of life. In practical terms, without the experi-
throughout much of the temperate areas of the conti- ence and the resources (money for equipment and
nent. These traditional economies varied in the seeds, arable land, enough water), Indian people
amount of land and population required for subsis- often faced starvation when deprived of the lands,
tence. Most hunting and gathering populations need water, plants, and animals upon which they knew
to move throughout their territories in a seasonal how to subsist.
cycle and have relatively low population densities.
Much of Native North America had a mixed econ-
omy, which included hunting and gathering as well Land as Real Property
as agricultural production. The crops domesticated European and American Indian societies alike held
by American Indians—primarily the triumvirate of ideals about how land, water, and natural resources
corn, beans, and squash, particularly when supple- were to be used and allocated. Communal land use
mented with protein from meat obtained by hunt- was not completely foreign to Europeans, in whose
ing—provided a balanced and nutritional diet. home countries were areas designated as commons,
Indian tribes in the arid Southwest practiced labor- often used by the poor or commoners. General
intensive, irrigated agriculture that depended on an recognition of the tribal system of common land
adequate supply of surface water and required com- tenure is seen in the congressional reaction to the
paratively dense, sedentary populations. initial Wyandot treaty of 1817. The initial treaty pro-
One significant variable affecting Indian land vided for the land not ceded by the Wyandot to be
use and land tenure was the effect of European dis- recorded as fee simple titles to individuals. The Sen-
eases on the American Indian population. European ate Committee on Public Lands expressed concern
populations had been exposed for centuries to Old that this process was unprecedented. They required
World bacterial and viral infections and had devel- that the treaty be renegotiated and that the Wyandot
oped substantial immunity to these diseases. Ameri- land be held “as before,” that is, in common (Prucha
can Indians were assaulted by these new pathogens, 1994).
which led to high mortality rates from disease as However, by the 1600s the European system of
each new tribal population was exposed. As Euro- real property consisted overwhelmingly of individ-
peans settlers increased in numbers through both ual ownership of land with sole legal title. In the
immigration and natural population growth, Native Western legal tradition, valuables used in common
populations experienced declines. As a conse- and to which no individual can claim exclusive
quence, early agreements by tribal populations per- rights, such as the oceans or the air, are not consid-
mitting small settlements of Europeans within their ered property. American Indian cultures generally
traditional territories in exchange for trade goods viewed land as commonly held, with recognition of

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Property: Land and Natural Resources 135

use rights to extended families, lineages, and clans held land? Non-Indians often exploited, and exacer-
that worked a particular field, hunted for game, or bated for the purpose of acquiring land, the varying
harvested fish. Many Indian populations also recog- interests of different individuals and groups within
nized family hunting and trapping territories. Chief tribes. Particularly in the early stage of land sales,
Isparhecher of the Muscogee Creek noted to federal the individual Indian who first sold a particular par-
officials in the 1890s that the Creek system of land cel of land to non-Indians may have received cash or
tenure, in which land was held in common, had goods for lands that were considered the territory of
proven successful and satisfactory throughout their a larger group. In the late 1700s, there were com-
tribal existence. He emphasized that the Creek did plaints within eastern tribes that their sachems and
not have homelessness or lawsuits about land titles. other leaders had become corrupt, accepting bribes
Similarly, in opposition to proposals to allot their and payments for personal gain in negotiations that
land in Oklahoma, Chief Wilson Jones of the affected the land of the entire tribal group.
Choctaw explained that the land use system of the The U.S. Constitution requires the consent of
Choctaw avoided disputes because the Choctaw two-thirds of the Senate to ratify treaties, and many
people owned the homes and lands of their grandfa- federal treaties with Indian tribes contained provi-
thers (Banner 2005, 265). In general, the Native sys- sions that required approval by a majority or three-
tems for use of land tended to be flexible to meet the fourths of the adult male members of a tribe. How-
needs of society as some families and lines grew and ever, Indian peoples had a variety of political
others diminished. Some rich ecosystems, such as structures, which varied from informal forms of
woodlands and coasts, had territories used by more leadership within small groups to large-scale politi-
than one family, band, or tribal group. In some loca- cal alliances among numerous tribal groups who
tions, there were buffer zones between Native spoke different languages and had different cultural
groups that may have been involved in hostilities traditions. But a majority or even super-majority
over use of land (Sutton 1975). Clearly, when Ameri- “vote” when members have essentially equal owner-
can Indians first entered into land agreements with ship of land certainly seemed unfair to those Indian
Europeans, they did so from an economic, social, people who opposed particular negotiations and
political, and cultural context different from the one treaties. Some misunderstandings may have
familiar to the non-Indian people with whom they occurred when non-Indians interpreted the political
were interacting. It is likely that Indian people structure of American Indian societies and assumed
intended to provide use rights for, not perpetual sole that some leaders had more authority than they
ownership of, a parcel of land when they were said actually had. There were also cases in which non-
by Europeans to be “selling” land. Indians created authority in individual Indian peo-
These issues of differing contexts of understand- ple that did not practically exist and used it to their
ing were exacerbated by basic challenges of commu- advantage in securing treaties for land.
nication; in many cases, agreements were reached In recognition of the difficulties posed by cross-
between representatives who did not speak the same cultural communication and the standard of respon-
language, and negotiations were conducted through sibility of the federal government as a tribal trustee,
interpreters. Furthermore, tribes used oral tradition the Supreme Court developed rules of treaty inter-
and symbolic goods, such as wampum belts, to pretation in a series of cases in the 1930s. These rules,
memorialize agreements and transactions. Euro- or canons, required that ambiguities in treaties be
peans and, later, the federal government always resolved in favor of Indian tribes, that treaties be
used written documents as the final record. The interpreted as Indian people would have understood
opportunity for abuse, misrepresentation, and gross them at the time of signing, and that treaties be con-
misunderstanding of legalistic terms was substan- strued liberally in favor of tribal interests.
tial. Many Indian people signed treaties based on
what they heard, but non-Indians always held them
to what was written (Banner 2005). Sovereignty and Ownership
When the United States was formed, it claimed sov-
ereignty over huge areas in which it had no on-the-
Who Had the Right ground governance and where there was no real
to Sell Tribal Land? property ownership by non-Indians. Through the
A key question in Indian land deals was, Who had assertion of sovereignty, the development of the
legal authority to negotiate regarding commonly laws under which treaties were negotiated, and the

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136 Treaty Responsibility and Reserved Rights

growing power to enforce them, non-Indians increas- ernment decided that it was much cheaper to buy
ingly controlled the acquisition of Indian land. This Indian land through the process of making treaties
claim of sovereignty by the United States included a than to go to war for it. Although the very earliest
preemptive right to purchase title to Indian land and trades of land for goods may have been voluntary,
was intended to secure these rights to the exclusion the transactions became increasingly and pro-
of all other powers. Through preemption, the federal foundly coercive. By the 1850s, the military and
government acquired Indian land, dividing it into political balance of power had shifted dramatically.
smaller parcels and selling it to white settlers. In Congress refused to ratify many treaties negotiated
1868, the federal government attempted to sell eight in the field with California tribes because the price
million acres of land acquired from the Osage to com- was considered too high, even though the California
mercial railroads rather than placing it in the “public Indians were forced onto mere patches of land and
domain.” Congress would not ratify the treaty, and it were starving. Overwhelmingly, money, goods, and
had to be renegotiated. The profit made by the services paid by non-Indians for land taken from
United States by purchasing Indian land and selling Indian people were worth less than the fair market
it to non-Indians, in total the largest land deal in the value of the land, even at the time of purchase.
history of the world, went into the federal treasury. Because it had the power, the government did not
Indian people, however, could only sell or cede their pay the fair market value; it paid as little as it could.
land to the United States, and ownership of land Some studies of the Indian Claims Commission,
essentially always moved in one direction, from Indi- which adjudicated tribal land claims between 1947
ans to non-Indians. and 1978, estimate that the United States paid about
President Andrew Jackson argued that the ten cents per acre for Indian land in the northern
United States should unilaterally take Indian land plains in the mid-1800s, when the average price paid
through the power of eminent domain and provide by white settlers was closer to two dollars (Prucha
just compensation rather than negotiate treaties. In 1994, 230).
1834, he enforced his view through the power of the The Constitution of the United States requires
U.S. military when he defied Chief Justice John Mar- the government to pay just compensation for the
shall’s rulings in the Supreme Court case Worcester v. land it acquires; just compensation is almost always
Georgia and forced the Cherokee on the Trail of Tears determined through an appraisal based on the mar-
to leave their homelands and move to Indian Terri- ket economy. But if the seller does not agree with the
tory. However, the legal structure of treaties as agree- price offered, the taking is more a confiscation than a
ments between sovereigns has proven to be the key compensation. Can money or goods ever be fair
source of legal land claims by tribes over time. compensation for the land of people whose way of
making a living, social structure, and religion are
directly tied to the land? Many Indian people over
Mother Earth: The Value of Land the decades have eloquently expressed the view that
and Natural Resources monetary value cannot be placed on the land, water,
Land and the natural and biological resources linked plants, animals, and sacred places. The Native
to it were the primary assets Indian people had that worldview consistently valued the land and the liv-
were valuable to non-Indians. When Europeans first ing world not as resources to be exploited or prop-
came to North America, Indian people traded furs, erty to be bought and sold but in familial or kinship
crops, and small parcels of land for the goods they terms, such as “Mother Earth.” Although monetary
wanted. Indian peoples with exposure to non-Indian compensation may have benefited some Indian peo-
society came to understand the unfairness of many ple individually, loss of land was destructive to tribal
land offers and began to ask for more per acre in ways of life that were closely tied to knowledge of
treaty negotiations. However, within a hundred particular ecosystems and territory. These knowl-
years after the Revolutionary War, the United States edge systems were passed on from generation to
had taken two billion acres of Indian land, approxi- generation and were internal to Indian culture and
mately one-half purchased by treaty or agreement societies. Without tribal homelands, the intergenera-
and much of the rest confiscated by the federal gov- tional transmission of language and culture was
ernment without compensation or formal action. made extremely difficult. Indian people and leaders
Shortly after the Revolutionary War, the U.S. often expressed their desire to maintain their tradi-
Treasury was nearly exhausted, and the federal gov- tional lifestyles and their independence from white

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Property: Land and Natural Resources 137

society and from the markets their independent War of 1812 and the end of the British threat to the
lifestyles afforded them. Elders of the Fort McDowell United States, alliances with Indian tribes were no
Yavapai Nation spoke metaphorically about the rela- longer critical to the international balance of power
tive value of land and money during their struggle on the North American continent. In a pattern that
to prevent the flooding of their land by the construc- would repeat over the next fifty years, settlers on the
tion of Orme Dam in the 1970s and 1980s: “Land is frontier who were remote from the political seat of
like diamonds, money like ice. The land stays for- power pushed into the lands of the Cherokee,
ever but money melts through your fingers” Muscogee Creek, Chickasaw, Choctaw, and Semi-
(Mariella 1990). Similar sentiments have been nole, the so-called Five Civilized Tribes. These set-
expressed by Indian people throughout the last two tlers provoked conflict, forcing the federal govern-
hundred years as they faced the prospect of trying to ment to act. With the passage of the Indian Removal
maintain their identity when they no longer had Act of 1830, the United States military forcibly
their homelands. removed all the Indian tribes west of the Mississippi
to Indian Territory. The southeastern tribes, all farm-
ing people, strongly opposed the removal but lacked
Treaties between Tribes, Colonial the military capacity to challenge the army and the
Powers, and the United States political strength to fight the executive power of the
before the War of 1812 president. In 1814, the Creek were forced to surren-
Colonial governments rapidly took control of the der twenty-three million acres of land to the federal
acquisition of land, preempting the right as a sover- government and to move to Indian Territory. Subse-
eign government to negotiate and conclude treaties quently, the Cherokee were forced to sign the Treaty
with the Native peoples. Early treaty making of New Echota, in which they gave up their land east
between tribes and European nations and, subse- of the Mississippi River in exchange for land in
quently, the United States were mechanisms to Oklahoma Territory. The move, which was con-
secure alliances and peace between sovereigns. ducted under military escort, is known as the Trail of
When the British relinquished their American Tears.
colonies in the Treaty of Paris in 1783, all the land
over which the Crown had claimed sovereignty east
of the Mississippi River became part of the United Reservations: Payment
States. Even the tribes who fought with the colonists for Ceded Lands
were legally subsumed, although the treaty said The federal government expected that the removal
nothing about Indian lands. of Indian tribes to Oklahoma Territory would isolate
The new nation was too weakened militarily Indians from conflicts with non-Indians. However,
and too poor from fighting the Revolutionary War to when Texas, the Oregon country, and the lands of
forcibly acquire Indian lands. Instead, the federal the Mexican Cession of 1848 became part of the
government set about acquiring title to Indian lands United States, the federal government entered again
through treaties, primarily in exchange for trade into treaty making with the many tribes in these
goods (e.g., the Treaty of Fort Harmar in 1789, the frontier territories. Tribes were forced onto relatively
Treaties of Fort Stanwix in 1768 and 1784, and the small tracts of land, known as reservations. Between
Treaty of Fort McIntosh in 1785). Purchases of Indian 1853 and 1856, fifty-two treaties were negotiated,
land were complicated by the sometimes long more than in any other period, and close to
process of determining boundaries as well as joint 174,000,000 acres of Indian land were taken for non-
ownership. Indian settlers and prospectors. Without any local
control to stop them, white settlers put down stakes
on Indian lands, creating a de facto ownership that
Removal: Land the federal government was subsequently pressured
in Exchange for Land to make permanent. After the Civil War, the Nez
In 1803, the Louisiana Purchase from France of eight Perce were forced to accept the Stevens treaty (Treaty
hundred thousand square miles nearly doubled the with the Nez Perce–June 9, 1863), which was then
size of the United States. The federal government delayed in Congress while changes were debated;
encouraged Indian people to move to the new terri- meanwhile, settlers continued to move into their
tory, which was isolated from non-Indians. After the lands, resulting in further land reductions.

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138 Treaty Responsibility and Reserved Rights

Reservation treaties listed the lands to be ceded The allotment process left a legacy of compli-
to the United States in return for federal promises to cated land tenure on the reservations that under-
provide goods and services and to form the basis for went allotment. Once allotments passed out of trust
the doctrine of reserved rights established by the status, individual Indians then had to pay real prop-
Supreme Court in Winters v. United States (1908). In erty taxes, and much of the land was sold to pay
addition, these treaties generally contained the fed- taxes and other debts. More than two-thirds of the
eral government’s assurance that Indian people remaining tribal lands in the continental United
could live on their remaining lands in perpetuity or States was lost to Indian people during the allotment
“as long as the water flows, the grass grows upon era. Allotments on a number of reservations remain
the earth or the sun rises.” Despite the eloquent in trust status, and the lease and homestead rights
promises of permanence, many treaties were broken are inherited. Over many generations, ownership of
to obtain even more land. By 1860, essentially no allotments has become highly fractionated, some-
tribal lands remained east of the 98th meridian. In times with more than one hundred owners for a
the next decade, following the end of the Civil War, single acre, making it increasingly difficult for indi-
most of the Indian lands in the interior of the conti- vidual allottees and their descendants to make eco-
nent were also taken from tribes. nomic use of the allotment rights. The development
With passage of the Dawes Act in 1887, Con- challenges of fractionated inheritance resulted in the
gress ended the practice of making formal treaties 1982 Indian Land Consolidation Act, in which tribes
with tribes but stated clearly that the provisions of were given first right of refusal to buy fractionated
existing treaties remained intact. However, in 1903 and privately held land within reservation bound-
the Supreme Court affirmed in Lone Wolf v. Hitchcock aries. In addition, the historic sale of allotments cre-
that Congress had the authority to unilaterally abro- ated checkerboarded land ownership patterns
gate treaties with Indian tribes as long as land tak- within a number of reservations, in which parcels of
ings were compensated. Later Supreme Court deci- Indian land are separated by land owned by non-
sions established that reservations created by Indians. These checkerboarded patterns of land
executive order and by statute have the same legal ownership on some reservations make it hard for
status as reservations created by treaties. those tribes to conduct regulatory activities and law
enforcement.
Some individual Indian people made consider-
Allotments: Private able income from royalties, leasing their allotted
Ownership of Land lands for economic development; but the transition
The General Allotment Act of 1887 (the Dawes Act) to the market economy was very difficult for the
was intended to assimilate American Indians into many individuals who were left without their land
white society and the market economy through and with no money. Without the experience and
small-scale farming. Indian male heads of household education to manage money, many individual Indi-
were to be allotted land for homesites and farms; ans were not able to create long-term financial secu-
after a transition period, often twenty-five years, the rity from land sales or lease income. Without tribally
land would pass out of reservation trust status and held lands, tribal social and political structures were
would be held as private property. In contrast, reser- no longer as meaningful, and small parcels of land
vation land cannot be sold by tribes or individual were not adequate to develop tribal projects that
Indians; only Congress can authorize the purchase would benefit the tribe as a whole. Uniformly, allot-
or sale of reservation trust land. The process of ment had deleterious effects on tribal cohesion.
dividing tribal reservation lands into small family Partly in recognition of the harm done to Indian
farms also left acres of tribal land unallotted. The assets and tribal life, the Indian Reorganization Act
federal government deemed this land surplus, ended the practice of allotment in 1934.
divided it, and sold it to non-Indian homesteaders.
Like treaties, the provisions of the Dawes Act of 1887
required that payment be made for any land taken Termination, Restoration, and the
by the allotment process. However, the Department Alaska Native Claims Settlement
of the Interior rarely lived up to its responsibilities as With the return of Indian veterans from World War
a trustee, and tribes generally did not receive ade- II, federal Indian policy shifted to one of termina-
quate compensation for their surplus land. tion, in which treaty rights were ended and trust sta-

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Property: Land and Natural Resources 139

tus removed from all the tribal land base. In two key When gold was discovered in the Black Hills in
termination cases, involving the Menominee of Wis- the 1870s, the federal government pressured the
consin and the Klamath of Oregon, pressures to ter- Lakota to accept the removal of the Black Hills from
minate the tribes came from interest in the commer- their already-reduced reservation by refusing to
cially valuable timber on their land. After more than provide provisions as required by earlier treaties
two decades of struggle, tribal status was restored to and which were necessary to avoid starvation. In
both tribes in the 1970s. 1877, Congress enacted a new treaty with only 10
The most recent treaty-like settlement affecting percent of the adult male Lakota signing, in direct
significant amounts of tribal land in the United conflict with the three-fourths requirement of the
States is the Alaska Native Claims Settlement Act of earlier Fort Laramie treaty. Although the Lakota
1971. Alaska Natives did not sign treaties with the had been guaranteed by treaty in 1874 that no addi-
federal government, and it had been unclear what tional land would be taken, the treaty of 1877
aboriginal title meant in Alaska. The Settlement Act removed the sacred Black Hills from their reserva-
gave forty-four million acres to Alaska Natives and tion. Twelve years later, in 1889, Congress again
provided $962 million for relinquishment of the removed half of the reservation acreage and
remainder of their land claims. divided the remaining land into six separate reser-
vations. Any resistance to this action was ended
with the killing by U.S. soldiers of scores of
Mining unarmed Lakota at Wounded Knee in 1890.
In the 1870s, the discovery of gold in the Black Hills Between 1904 and 1910, Congress removed addi-
area of what is now western South Dakota, north- tional lands from the six reservations, including
eastern Wyoming, and southeastern Montana led to three-fourths of the Rosebud Reservation.
a sequence of broken federal treaty promises that In the first year after the Black Hills were taken
stands out even in the lengthy history of treaty abro- from the Lakota Reservation, mining companies and
gation. The impetus behind the relentless pressure to prospectors extracted approximately $3.5 million in
take the land of the Lakota Indians of the northern gold. This figure increased to $4.5 million in 1879
plains was the commercial value of the gold, silver, and to $6 million in 1880. The Black Hills also
and other minerals in the Black Hills. By the late yielded silver, lead, coal, iron, quartz, nickel, and
1850s, the large buffalo herds that had sustained the copper. Major mining operations on what once had
Plains Indians had been hunted by non-Indians been Lakota Reservation lands included the Home-
almost to extinction. The loss of the buffalo and the stake and Gilt Edge Mines, which became some of
resulting blow to the ability of the Plains tribes to the most productive and profitable mines in the
maintain an independent tribal life led to the Treaty United States.
of Fort Laramie of 1851. In the initial treaty, the Never abandoning their cultural and spiritual
Lakota retained a significant portion of their Black relationship to the Black Hills, the Lakota filed a
Hills land in the Great Dakota Reservation. The claim in the federal court of claims in 1920 request-
Black Hills were sacred to the Lakota people and ing the return of the Black Hills. Despite its autho-
were the location of ceremonies, vision quests, and rization to adjudicate claims against the United
burials. However, government negotiators pressured States under treaties, agreements, or federal laws,
a group of Lakota to sign a second treaty in 1868 that the court did not review whether the treaty of 1877
reduced their land base from sixty million acres to provided just compensation to the Lakota. Not until
twenty million. This treaty guaranteed the security the establishment of the Indian Claims Commission
of the remaining land from the white settlers, who by act of Congress in 1946 did a new opportunity
sparked conflicts by constant incursions into the develop; in 1950 the Lakota filed a claim. In 1967,
reservation. The federal government viewed the Fort eight tribes were awarded $12.21 million dollars in
Laramie treaty as a way to force the Plains Indians compensation from the Claims Commission for
out of their traditional hunting way of life into small- twenty-nine million acres taken from them through
scale agriculture. But the climate and soils of the arid treaties. The Claims Commission ruled that the
northern plains presented substantial challenges for United States had used eminent domain to seize
sustained agricultural production and was a pro- their land rather than acting in its role as trustee.
foundly different way of life from the buffalo-based Consequently, the United States owed them compen-
culture the Plains tribes knew. sation for the Black Hills.

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140 Treaty Responsibility and Reserved Rights

As the legal efforts were slowly working their each adult Osage male received about 650 acres of
way through the Claims Commission and the courts, surface rights with fee simple title. The individual
the State of South Dakota established parks in the Osage landowners were able to develop, lease, or
Black Hills, making it increasingly difficult for the sell their land. However, the subsurface mineral
Lakota to practice their sacred ceremonials. The rights were held in common, and each Osage
American Indian Treaty Rights Movement of the received a headright—that is, he or she would receive
1970s grew out of the Lakota struggle to regain the an equal share of all income from oil and gas pro-
Black Hills. Members of the American Indian Move- duction from their tribal lands. In the early 1900s, the
ment established the Yellow Thunder Camp in the Osage tribe declared it illegal to sell a headright,
Black Hills to raise awareness of the sacred value of which by 1917 was worth $2,719; the value increased
the land, and lawsuits were filed under the Ameri- to over $8,000 in 1920. As a consequence, individual
can Indian Religious Freedom Act in 1978, claiming Osage experienced substantial increases in income.
that the seizure of hills was a violation of Lakota reli- Although some tribe members had the experience
gious rights. and skills to control and manage this income, others
In 1980, the Supreme Court affirmed the Claims spent the money or were manipulated into spending
Commission and ruled that the tribes were due cash it in ways that did not result in increased quality of
compensation for the fair market value of the Black life or long-term financial security. The infusion of
Hills at the time land was taken, plus interest—a substantial income from oil headrights also
sum of close to $122.5 million. The fair market value increased conflict and violence within the tribe and
determination did not include the value of minerals attracted a number of non-Indians looking to marry
extracted from the land by mining corporations, into wealth. The intermarriage with non-Osage fur-
which has been estimated to be close to $4 billion. ther affected tribal cohesion and tribal identity (Fix-
National news was made when many tribal mem- ico 1998).
bers refused the compensation, asking instead for Today, more than half the nation’s coalfields are
the return of the Black Hills. Some attempts were located west of the Mississippi River; one-third of
made in Congress in the late 1980s to reach a settle- those western fields are on tribal lands. An estimated
ment, but the issue remains unsettled at the time of 25 to 40 percent of the uranium, one-third of the coal,
this writing. Further attention was focused on the and 5 percent of oil and gas are on reservations in
Black Hills during the 1980s, when non-Indians, con- the western part of the United States, including
cerned about environmental degradation from strip- Black Mesa on the Navajo and Hopi Reservations
mining of coal deposits and leaching of cyanide into (Ambler 1990). The federal government, in its role as
groundwater from decades of gold extraction, joined trustee of tribes, has the responsibility to manage
with Native Americans in developing the Black Hills those resources for the primary benefit of those
Alliance. tribes. The poor oversight, poor record keeping, and
In Oklahoma, the oil boom, which began in the poor advocacy of the Department of the Interior in
1890s, had a major impact on Indian lands, including approving leasing and royalty arrangements for the
the lands of the Osage tribe. The Osage were forced historical extraction of the mineral resources of
from their homelands in present-day Missouri and Indian land is the subject of the current Elouise
Arkansas into Indian Territory through a series of Cobell lawsuit in federal court. With the technical
treaties throughout the 1800s. After ceding close to and legal assistance of national organizations such as
45 million acres, the Osage purchased 1.4 million the Council of Energy Resource Tribes, tribes are
acres in 1870 from the Cherokee for a new reserva- increasingly managing their own resources. The
tion in the northeastern portion of Indian Territory. building of tribal environmental management and
These lands were not sought after by non-Indians regulatory capacity since the 1980s has supported
until oil was discovered underneath them in 1875. the goal of protecting land, water, and air quality
Immediately after the discovery of oil, non-Indians and ecosystems. However, the power of Congress to
sought leases on the Osage Reservation for mining override treaty provisions through statute, which
oil and gas. Many of these initial leaseholders leased was confirmed in Lone Wolf v. Hitchcock in 1903, con-
substantial portions of land and subleased them. In tinues to have the potential to affect tribal ability to
some cases, these leaseholders made substantially protect tribal resources. In 2005, Senator Inhofe of
more from the Osage lands than the Osage them- Oklahoma added a rider to a national transportation
selves had. In 1904, the reservation was allotted; bill that removed the ability of Oklahoma tribes to

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Property: Land and Natural Resources 141

regulate water quality under federal clean water remove the trust status protecting the remaining
laws without the approval of the State of Oklahoma. Klamath timber, in order to cut lumber at a faster
rate. In 1954, Congress withheld a $2.6 million settle-
ment to pressure for termination of the federal trust
Timber status of the Klamath lands. These interests in
The Klamath and Modoc tribes of what is now exploiting the timber in an unsustainable way were
southeastern Oregon lived, hunted, and fished in the part of the drive that led to the termination policy of
Pacific Northwest coastal region, one of the most the 1950s and 1960s, under which both tribal land
productive ecosystems in the United States. The and allotted land in trust would become individu-
Native peoples of this area were largely sedentary ally held, private land. However, most of the tribe
harvesters of the exceptionally rich and reliable fish members opposed the removal of the trust status,
populations, such as salmon, which spawned annu- and a Bureau of Indian Affairs report of the time
ally in the rivers that flowed through their lands. In stated clearly that, as a group, the Klamath were not
addition, the homelands of the Klamath included prepared to succeed financially if the trust status
commercially valuable forests of ponderosa pine and were removed. Congress passed the Klamath Termi-
mixed conifers. The desire to protect their valuable nation Act, working with the support of a small seg-
timberlands was a major reason the Nez Perce treaty ment of the tribal membership. The reservation land
of 1863 was reopened, even though settlers were was taken by condemnation and the tribal trust sta-
pushing into more of their lands day by day. tus terminated in 1961. Termination released all
The federal government pressured the Klamath tribal property that contained rich timberlands,
into the treaty of 1864, which established their reser- including fifty thousand acres with 3.8 billion board
vation and ceded more than 23 million acres, which feet of commercial lumber. As a result, significant
included valuable timberlands. Having seriously stands of timber were clear-cut, reducing the long-
reduced access to their traditional hunting and fish- term productivity of the timberlands but increasing
ing resources, the Klamath and the Modoc tribes erosion of the soil and pollution of local streams.
took up ranching of cattle and horses and developed Despite the termination of the tribe, in 1974 the
a small sawmill in 1870. By 1896, sales of Klamath Klamath won an initial victory when the federal
timber were close to 250,000 board feet per year. courts ruled that the Klamath retained treaty rights
Following federal Indian policy of the time and to hunt, fish, and gather in their traditional territo-
in response to local pressures for more land, the fed- ries and had to be consulted in land management
eral government divided the Klamath Reservation decisions when those decisions affected their treaty
into allotments in the 1890s. The allotments were 80 rights. Then, in 1986, after years of political and legal
acres of farmland or 160 acres of grazing land per effort, Public Law 99–398 restored federal recogni-
person; the sale of “surplus” reservation land that tion of the Klamath tribe as a governmental entity.
was not allotted resulted in the additional loss of Like the Klamath, the Menominee tribe of Wiscon-
more than 100,000 acres. By the end of the allotment sin, which has substantial timberlands, was also ter-
period in 1934, 10 percent of the land within the minated and then restored to federal tribal status in
reservation was privately owned by individual 1973.
Klamath Indians; some 860,000 acres were still held Although restoration of the tribe did not return
in common. As with so many situations in which the Klamath land base to tribal status, the develop-
allotted lands moved out of trust status and into pri- ment of the Klamath Economic Self-Sufficiency Plan
vate ownership, Klamath landowners ended up sell- resulted in the tribe’s continued pivotal role in the
ing or losing 95 percent of their privately owned local economy. Klamath Tribal Forest Management
land. However, on the tribal lands, it was estimated Plans are designed to protect the natural resources of
there was $80 million worth of ponderosa pine. The the tribe so that they are not degraded for future
Klamath tribe managed its forests for long-term generations. This long-term perspective is a core ele-
yield, but the timberlands that had moved out of ment of a tribal worldview that seeks quality of life
tribal hands were cut at a faster rate, reducing their for the tribe as a whole.
ability to sustain healthy wildlife populations and In the twenty-first century, tribes are buying
continued logging. back land, controlling their own extractive indus-
After World War II, local timber interests and tries, and managing water quality, timber, and other
some members of the Klamath tribe wanted to natural resources in a sustainable way that does not

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142 Treaty Responsibility and Reserved Rights

degrade the resources over time. Tribal control of Lawson, Michael L. 1982. Damned Indians: The Pick-
Sloan Plan and the Missouri River Sioux,
development enables resources to be managed for
1944–1980. Norman: University of Oklahoma
the future of Native nations for generations to come. Press.
Patricia S. Mariella Mariella, Patricia. 1990. “Land Like Diamonds,
Money Like Ice.” Practicing Anthropology, 12(2):
References and Further Reading 8–9.
Ambler, Marjane. 1990. Breaking the Iron Bonds. McNickel, D’Arcy. 1973. Native American Tribalism.
Lawrence: University Press of Kansas. New York: Oxford University Press.
Banner, Stuart. 2005. How the Indians Lost Their Land. Parker, Watson. 1982. Gold in the Black Hills. Lincoln:
Cambridge, MA: Harvard University Press. University of Nebraska Press.
Clinton, Robert N., Kevin Gover, and Rebecca Tsosie. Prucha, Francis Paul. 1994. American Indian Treaties:
2004. “Introduction.” In Colonial and American The History of a Political Anomaly. Berkeley, Los
Indian Treaties: A Collection. Tempe: Arizona State Angeles, and London: University of California
University American Indian Law Program. Press.
Debo, Angie. 1966. And Still the Waters Run: The Rollings, Willard H. 1995. The Osage: An
Betrayal of the Five Civilized Tribes. New York: Ethnohistorical Study of Hegemony on the Prairie-
Gordian Press. (Orig. pub. 1940). Plains. Columbia: University of Missouri Press.
Fixico, Donald L. 1998. The Invasion of Indian Country Stern, Theodore. 1965. The Klamath Tribe: A People
in the Twentieth Century: American Capitalism and and Their Reservation. Seattle: University of
Tribal Natural Resources. Niwot: University Press Washington Press.
of Colorado. St. Germain, Jill. 2001. Indian Treaty-Making Policy in
Franks, Kenny A. 1989. The Osage Oil Boom. the United States and Canada, 1867–1877.
Oklahoma City: Oklahoma Heritage Lincoln: University of Nebraska Press.
Association. Sutton, Imre. 1975. Indian Land Tenure. New York:
Hughes, J. Donald. 1983. American Indian Ecology. El Clearwater.
Paso: Texas Western Press. Williams, Robert A. 1997. Linking Arms Together:
Jennings, Francis. 1975. The Invasion of America: American Indian Treaty Visions of Law and Peace,
Indians, Colonialism and the Cant of Conquest. 1600–1800. New York: Oxford University
Chapel Hill: University of North Carolina Press. Press.
Jorgensen, Joseph G., ed. 1984. Native Americans and Wilson, Terry P. 1985. The Underground Reservation:
Energy Development. Boston: Anthropology Osage Oil. Lincoln: University of Nebraska
Resource Center and Seventh Generation Fund. Press.

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Indian Water Rights and Treaties

I
I
n the eastern United States, the states have regu- Indian nation. The downside of this system, in terms
lated the use of water by a system of riparian of prior appropriation, is that the “priority date”
rights that came down from English law, in assigned to the Indians was the date of the congres-
which all who own land along a water source have sional act that created the reservation, rather than a
the right to the use of the water of that source. How- date of “time immemorial,” which would seem more
ever, this system has worked well only in places appropriate, given the lengthy tenure of Indians on
with average to heavy rainfall, where the utilization their lands.
of water by upstream users does not have a detri- This system of reserving rights based on reser-
mental effect on downstream users. vation status has created some anomalies within
In the arid lands of the American West, where Indian country. Land ownership has been the key to
most American Indians reside, water rights are gov- New Mexico Pueblo Indians’ water rights. The
erned by state laws founded on the principle of prior Pueblo nations have early priority dates derived
appropriation. Prior appropriation can be best from Spanish land grants and the U.S. Treaty of
summed up by the principle “First in time, first in Guadalupe Hidalgo with Mexico. Because of this,
right.” In practical terms, this means that the oldest the Pueblos have “aboriginal” water rights. Unlike
water right is satisfied in full before later users can many other nations, the Pueblos reside on lands they
have any access to the water supply. In other words, have never left and from which they have never
the first to make beneficial use of the water has the been forced by the United States. Although the
right to all the water they originally used. Whatever United States recognized those prior holdings in the
remains after the first claimant’s use of the water is Treaty of Guadalupe Hidalgo of 1848, thereby giving
the property of the second claimant, and so on down federal protection to the Pueblo rights to land and
the line. This worked well in the nineteenth-century water, these rights do not depend on any federal
West, as the institutions necessary to govern and action for their existence.
determine rights in a riparian system were lacking. During the twentieth century, however, most
In a system of prior appropriation, the users them- Indian nations have had to base their hopes for
selves were able to determine the first in right, at justice in water rights on federal court decisions.
least initially. The Supreme Court, however, has long Congress had not passed any definitive, all-
recognized that both federal and Indian water rights encompassing water rights bills supporting or even
exist outside of the state-regulated water rights sys- defining their rights. The decision that formed the
tems and must be satisfied as well, creating a com- most generous basis for Indian water rights, the
peting system of water allotment. reserved rights doctrine, and thus the most con-
Water policy, for the majority of American Indi- tention with non-Indian water claimants is Winters v.
ans in the West, has been determined by the imple- United States, in which the Supreme Court held that,
mentation of two apparently contradictory methods when Indian reservations were established, the
of water allocation: the prior appropriation system Indian nations and the United States implicitly
and the reserved rights doctrine (also referred to as reserved, along with the land, sufficient water to ful-
the Winters doctrine). Put succinctly, in signing fill the purposes of the reservations, which in most
treaties with the federal government that resulted in cases was farming.
the creation of their reservations, Indians agreed to Therefore, according to the Winters doctrine,
vast land cessions in return for guarantees that their which was derived from the decision, Indian water
reservation lands would be permanently reserved rights are defined and governed by a body of federal
for Indian use and occupation. The Supreme Court law that recognizes that Indian nations have sover-
ruled that, when the Indians did this, they reserved eignty over the water on their reservations. The
to themselves every right not specified in the treaty. Supreme Court held that Indian governments have
Ownership of the land and, implicitly, its resources jurisdiction over their members and over activities
and all sovereignty not expressly relinquished to the on the Indian reservations, and this has affected the
federal government were rights reserved to the ways in which Indians can use the water that flows

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144 Treaty Responsibility and Reserved Rights

through or adjacent to their reservations. However, ity on the idea of beneficial use, which, more often
by shortsightedly handing down a decision but fail- than not, has to do with agriculture. Although many
ing to provide any way of reconciling it with the southwestern groups, such as the Pueblos, have an
prior appropriation system already in use, the Court agricultural tradition that predates European con-
did more to provoke further conflicts over water tact, and others, such as the Jicarilla Apache, have a
between Indian and non-Indian populations than it mixed-subsistence tradition, the factors of modern
did to settle them. Winters did nothing at all to deter- reservation life do not always mean that the Indian
mine either the scope of its application or the pa- nations will use the water as the state or federal laws
rameters for determining the amount of water would prefer them to.
Indian nations could claim. Almost from the time the Because Indian nations are theoretically not
decision was handed down in 1908, and especially held to state laws in these matters, conflicts have
during the 1980s and 1990s, many nations have gone continually arisen over which water rights doctrine
to court in an effort to quantify their federal water is applicable to the adjudication of rivers that flow
rights, even though it has often meant a serious over Indian as well as non-Indian lands. The Winters
diminution of the possible extent of those rights. doctrine would seem to support the view that Indi-
Two issues are raised by federal government ans have a right to enough water to irrigate reserva-
involvement in protecting Indian water rights and tion agricultural lands, and yet the doctrine of prior
other Indian-held natural resources. First, the owner- appropriation supports the idea that, if the Indians
ship of land and water rights is antithetical to many did not historically irrigate their lands, then non-
American Indian cultural and religious systems. Sec- Indian water claimants would be substantiated. The
ondly, federal involvement raises the issue of the dif- courts then have to examine what water was
ference between the dependency of Indian nations reserved for use on the Indian reservations, how
on the federal government and self-determination Indian water rights are quantified and used, and
with governmental protection. This has long been a how these water rights are regulated and enforced.
difficult distinction to draw. Speaking in purely eco- Because of the potential extent and great value of the
nomic terms, by failing to promote and protect the water that could be claimed by Indian nations under
right of Indian nations to develop their resources, the Winters doctrine, especially in the American
the government perpetuates dependency and West, where water has become increasingly scarce,
poverty. On the other hand, if it protects Indians’ Indian water rights have constantly been under
interests and Indians’ rights to develop their attack in the federal and state courts and in other
resources, the federal government may be guilty of political arenas as well.
affecting Indian culture, but it can certainly not be As clearly contradictory as the two dominant
said to be perpetuating dependency. Rather, the fed- systems of allocation (Winters and prior appropria-
eral government would be acting to promote the tion) may appear, the actual situation in practice has
health of the Indian economies necessary for true been both less contradictory and more confusing
self-determination. than the various federal decisions would make it
The main reason for the continued difficulty in seem. Historian Daniel McCool pointed out that
securing water rights under the Winters doctrine is these two contradictory theories of water allotment
that it has constantly come up against prior appro- created a conflict of interest within the Justice
priation, the prevailing method of allocating water Department. The Justice Department was to be the
claims in the western United States. When the doc- legal representative for all federal interests, so its
trine of prior appropriation is taken to include official position in favor of prior appropriation in the
Indian use, the courts necessarily enter the picture to West was in conflict with the reserved rights doc-
fix the amounts allocated by right to a given Indian trine (Winters doctrine), which was supposed to
nation as determined by its use of a particular water determine Indian water rights. The Winters doctrine
source. Because Indian reservations were established theoretically makes the prior appropriation doctrine
before most water uses began in the West, Indians irrelevant. In practice, however, federal irrigation
often hold the oldest—and thus the most valuable— and reclamation programs were rarely undertaken
water rights. Many Indian groups have occupied in the interests of Indian peoples, even when they
land since time immemorial and thus also have were constructed adjacent to Indian lands.
strong, ancient priority claims to water for Indian The Bureau of Reclamation, dedicated to the
uses. State water laws in the West often place a prior- doctrine of prior appropriation and the promotion of

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Indian Water Rights and Treaties 145

non-Indian irrigated agriculture in the West, exer- money for facilities or projects to put to use the
cised great power and acted decisively in the inter- water they are allocated. Such federal funding has
ests of its constituents when allocating the waters allowed Indians to secure not only water rights but
made useful by its construction projects. Even also delivered water put to beneficial use. At the
though the Winters doctrine might have given the same time, non-Indians gain the assurance that they
Indians a theoretically large claim to the waters of will be able to continue using water without the con-
the West, battles over access to those waters occu- stant threat of an assertion of Winters rights on the
pied Indian nations, the federal and state courts, the part of the Indian nations.
Department of the Interior (both as the promoter of Steven L. Danver
non-Indian development through the Bureau of
Reclamation and as the defender of Indian rights
through the Bureau of Indian Affairs), and Congress
throughout the twentieth century. References and Further Reading
Even where the rights seem plain, the capri- Burton, Lloyd. 1991. American Indian Water Rights and
ciousness of the courts toward Indian nations has the Limits of Law. Lawrence: University Press of
Kansas.
meant that the nations have had to enter into lengthy
Colby, Bonnie G., John E. Thorson, and Sarah Britton.
and expensive litigation with no guarantee of suc- 2005. Negotiating Tribal Water Rights: Fulfilling
cess. Since the 1980s, the federal government has Promises in the Arid West. Tucson: University of
promoted negotiated settlements as the best way for Arizona Press.
all parties to resolve their water claims. Concluded Danver, Steven L. 2002. “Land, Water, and the Right
and implemented at both state and federal levels, to Remain Indian: The All Indian Pueblo
these settlements have, in many cases, ended the Council and Indian Water Rights.” In Water on
the Great Plains: Issues and Policies, eds. Peter J.
endless decades of litigation and carry with them the
Longo and David W. Yoskowitz, 141–167.
promise of delivering real, “wet” water to the Indian Lubbock: Texas Tech University Press.
nations. Settlement negotiations have usually been Doherty, Robert. 1993. Disputed Waters: Native
started after an Indian nation or the United States Americans and the Great Lakes Fishery. Lexington:
has already become involved in a case involving University Press of Kentucky.
water rights claimed by a state and other non-Indian DuMars, Charles T., Marilyn O’Leary, and Albert E.
water users. The negotiation necessary to achieve a Utton. 1984. Pueblo Indian Water Rights: Struggle
for a Precious Resource. Tucson: University of
water settlement involves the process of alternative
Arizona Press.
dispute resolution, which allows all the interested Hundley, Norris, Jr. 1978. “The Dark and Bloody
parties to participate. This type of resolution is most Ground of Indian Water Rights: Confusion
effective when there are factual disagreements on Elevated to Principle.” Western Historical
technical data between the parties; therefore, they Quarterly, 9: 477.
sometimes rely on court decisions to decide basic Hundley, Norris, Jr. 1982. “The ‘Winters’ Decision
legal questions, such as the priority date of the reser- and Indian Water Rights: A Mystery
vation. Rather than seeking final adjudication in the Reexamined.” Western Historical Quarterly 13: 17.
McCool, Daniel. 1987. Command of the Waters: Iron
courts, the parties use the court-determined data to
Triangles, Federal Water Development, and Indian
achieve a solution that will satisfy some of the Water. Tucson: University of Arizona Press.
desires of all sides rather than all of the desires of McCool, Daniel. 2002. Native Waters: Contemporary
one side. Indian water needs are addressed without Indian Water Settlements and the Second Treaty Era.
eliminating non-Indian water uses, although usually Tucson: University of Arizona Press.
neither side is able to achieve all its goals. Wilkinson, Charles F. 1992. Crossing the Next Meridian:
Negotiations in a land of limited water like the Land, Water, and the Future of the American West.
Washington, DC: Island Press.
American West mean that the Indian nations usually
Worster, Donald. 1985. Rivers of Empire: Water, Aridity,
do not receive the full share of water determined by and the Growth of the American West. New York:
the Winters doctrine; but in return they often get Oxford University Press.

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Hunting, Fishing, and Gathering

T
T
hroughout most of North America, indige- side one’s own village, as a person could thereby
nous subsistence traditionally depended on acquire access to several locations across a wide area.
seasonal cycles of hunting, fishing, and gath- Hunting and gathering grounds also belonged to
ering. Even among groups that adopted agriculture families with recognized usufructuary privileges,
or pastoralism, wild animals and plants enriched which could be more or less exclusive depending on
diets while also providing security against the fail- the natural abundance of the resource in question.
ure of crops or the loss of livestock. In many areas, As one nineteenth-century American observed of the
traditional subsistence practices continued to furnish Ottawa and Ojibwe in Upper Michigan:
Indian families with food, clothing, shelter, and tools
long after the introduction of European trade goods. The beaver dams . . . all have owners among the
Assimilationist policies and ecological changes grad- Indians, and are handed down from father to
ually undermined these activities as white settle- son. The sugar camps, or “sucreries,” as the
ment spread across the continent, yet they still Canadians call them, have all an owner, and no
occupy an important place in the economic, social, Indian family would think of making sugar at a
and religious lives of indigenous communities from place where it had no right. Even the cranberry
Alaska to Florida. Many tribes expressly reserved patches, or places in the swamp and bush
the right to continue hunting, fishing, and gathering where the berry is plucked, are family property;
on ceded lands through treaties with the U.S. gov- and the same with many other things.
ernment. Since the late nineteenth century, however,
bitter disputes have developed regarding the exact Such kinship-centered systems of allocation dif-
nature and extent of Indian reserved rights. State fered significantly from the centralized tribal owner-
authorities and private citizens have tried to restrict ship outlined in treaties and court decisions, as well
or prevent Native hunting, fishing, and gathering as from the European American conception of land
outside reservation boundaries. Indians have and natural resources as marketable commodities.
responded with civil disobedience, test cases, and Consequently, the post-treaty period witnessed
repeated appeals to the federal government. numerous disagreements within and between tribes
Although the threat of abrogation remains, the fed- in addition to disputes with state governments and
eral courts have generally upheld treaty rights since non-Indian citizens. This essay focuses on the Pacific
the early twentieth century, and tribes have become Northwest and the Great Lakes, which have been the
co-managers of valuable natural resources. primary arenas of treaty litigation in the United
Tribal regulation of reserved rights and re- States, but the patterns evident in those regions hold
sources is an important element of modern sover- for most others as well.
eignty, but it also represents a significant departure
from aboriginal practice. Before the negotiation of
treaties, prime hunting, fishing, and gathering sites Native Interpretations
traditionally belonged to individuals and kin groups of Treaty Rights
rather than to clearly defined and tightly bounded At bottom, the determination of Native Americans
“tribes.” Among the Straits Salish-speaking peoples to defend their treaty rights reflected indigenous
of Puget Sound, a man could fish wherever he and conceptions of treaties, land, and natural resources
his wife had relatives, which generally meant any- that were fundamentally different from those of
where in Straits Salish territory. Specific reef net and European Americans. Indians traditionally viewed
weir locations were owned by individuals who man- animals, fish, and plants as nonhuman persons and
aged and maintained them on behalf of larger kin potential sources of spiritual power as well as suste-
groups. Similarly, in the Columbia River basin, the nance. To channel that power and to ensure abun-
rights to a particular fishing rock, island, or scaffold dant supplies of food, Native people performed cer-
descended through inheritance, and the owner had emonies intended to show respect and gratitude for
to grant permission for others to use it. Fishing the assistance and sacrifices of their nonhuman
rights thus created a major incentive to marry out- “brothers and sisters.” In the Pacific Northwest, for

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148 Treaty Responsibility and Reserved Rights

example, many groups held “first-foods” feasts During treaty councils, Indian representatives
before allowing their members to start hunting, fish- often specified the subsistence sites they wished to
ing, and gathering. “At the beginning of each sea- retain for their people. William Yallup, a descendant
son,” recalled Vivian Adams (Yakama) in the early of a Yakama treaty signer, recalled that each of the
1990s, “a special group of people was selected for the chiefs at the Walla Walla council in 1855 “[gave] a
first gathering of the season’s offerings.” Chosen for description of what they had reserved in the way of
their special skills and intimate knowledge of partic- food.” Their statements went unrecorded but likely
ular resources, these ceremonial leaders fasted and echoed those made at the subsequent Wasco council
prayed for their people’s success in the coming har- in central Oregon, where several headmen expressed
vest. “Upon return of the group, a feast was held: for special concern for their food sources. “Our fishing
the first digging, the first catch, the first picking, and place on the Columbia we wish to keep,” declared
the first kill.” Such individual and collective rituals the Tenino chief Alexis. “The country you have
of thanksgiving took place around Native North shown us we are glad to live on it. That is all I have
America, and many are still observed today (albeit in to say. I only came to talk of the fishing ground.”
modified form) by Indians committed to traditional Simtustus, a Tygh spokesman, likewise explained:
subsistence practices. Their ancestors reserved the “The [Deschutes] have sustained us in fish. The Falls
right to continue those practices because they could where we catch the fish, we would like to reserve it.
not imagine living without them. You have seen our country where we get our roots,
U.S. treaty makers found it expedient to placate this is the country I spoke about.” The Indians had
Indian concerns, but translation problems and differ- no intention of surrendering their means of survival,
ing cultural expectations often produced divergent and the treaty commissioners consented to provide
interpretations of the treaties and the rights they pro- the necessary protection.
tected. Whereas policymakers assumed that Indians In many cases, however, the provisions that
would ultimately assimilate into white society, fed- secured Native subsistence rights also sowed the
eral negotiators recognized that tribal leaders would seeds of future controversy. Although the treaties
not sign papers that failed to protect their access to did not give the Indians special privileges, as critics
important subsistence resources and sites. Therefore, later claimed, the language of the documents often
in order to soften the shock of land cessions and ease restructured indigenous rights in subtle yet signifi-
the expected transition to European American life- cant ways. The treaties of 1854–1855 concluded in
ways, many treaties explicitly secured Indian rights the Pacific Northwest offer a case in point. Each of
to hunt, fish, and/or gather on ceded lands. As early the agreements made in the Oregon and Washington
as 1789, the Wyandot treaty stated that “individuals territories contained a virtually identical version of
of the said nation shall be at liberty to hunt within this article:
the territory ceded to the United States, without hin-
drance or molestation, so long as they demean them- The exclusive right of taking fish in all the
selves peaceably, and offer no injury or annoyance to streams, where running through or bordering
any of the subjects or citizens of the said United said reservation, is further secured to said
States.” The treaties of 1837, 1842, and 1854 with the confederated tribes and bands of Indians, as
Lake Superior Ojibwe guaranteed “[t]he privilege of also the right of taking fish at all usual and
hunting, fishing, and gathering the wild rice, upon accustomed places, in common with the citizens
the lands the rivers, and the lakes included in the of the Territory, and of erecting temporary
territory ceded . . . during the pleasure of the United buildings for curing them; together with the
States.” After Congress unilaterally ended formal privileges of hunting, gathering roots and
treaty making in 1871, some executive orders, fed- berries, and pasturing their horses and cattle
eral statutes, and congressional agreements secured upon open and unclaimed land.
Indian hunting, fishing, and gathering rights on
ceded lands. In 1891, for instance, an executive order By vesting subsistence rights in “confederated
reducing the Colville Reservation in northeastern tribes and bands,” this clause purported to trans-
Washington State provided that “the right to hunt form individual and familial entitlements into tribal
and fish in common with all other persons on [the ones. At the same time, it allowed competition from
ceded lands] shall not be taken away or in anywise American citizens and introduced a false distinction
abridged.” between permanent “rights” and temporary “privi-

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Hunting, Fishing, and Gathering 149

leges.” The treaty commissioners foresaw the contin- fishing rights at all; that the white men just weren’t
uance of fishing at traditional sites but presumed interested in fishing.”
that the Indians would abandon their other off- The canons of treaty construction established by
reservation activities as assimilation proceeded and the U.S. Supreme Court dictate that treaties must be
whites filled the surrounding country. Indians gener- interpreted as the Indians would have understood
ally had different expectations, however, and they them at the time, that all doubtful or ambiguous
left the councils with very different understandings terms must be resolved in favor of the Indians, and
of the treaties. that treaties in general must be liberally construed to
As members of oral cultures, most tribal leaders the benefit of the Indians. In practice, however, the
remembered the verbal explanations of the treaty courts have considered only express treaty or statu-
terms rather than the words written in the official tory language reserving off-reservation hunting,
documents. They did not recognize the legalistic fishing, and gathering rights. Native oral traditions
difference between rights and privileges, and the concerning treaties and treaty councils are typically
commissioners made no such distinction in their dismissed as hearsay. For Indians steeped in orality
descriptions of the “fishing clause.” At the Point No rather than literacy, the agreements comprised
Point council in 1854, for example, Washington ter- everything said and solemnized at the councils, not
ritorial governor Isaac Stevens simply declared, merely the words written in the official documents.
“This paper secures your fish. Does not a father give Decades later, descendants of treaty signers contin-
food to his children?” The following year, using a ued to relate stories of promises made but not
chain of mixed-blood interpreters and Indian criers, recorded on paper. Most importantly, they insisted
Stevens informed the Indians at the Walla Walla that their treaty rights had been reserved in perpetu-
meeting: ity. As Yakama fishing rights activist David Sohappy,
Sr., explained in 1978, his ancestors understood that
You will be allowed to pasture your animals on the treaty would endure “as long as that mountain
land not claimed or occupied by settlers, white stood there, as long as the sun rose in the east and
men. You will be allowed to go on the roads to long as the grass grows green in the spring and the
take your things to market, your horses and rivers flow. To me, that meant forever, not to be abro-
cattle. You will be allowed to go to the usual gated or changed or done away with any other way.
fishing places and fish in common with the That’s the way the old people talk.”
whites, and to get roots and berries and to kill The central issue in most state-tribal disputes
game on land not occupied by the whites. All has been the extent to which the states can regulate
that outside the reservation. Indian hunting and fishing rights. Faced with declin-
ing stocks of fish and game as well as growing pres-
At the Wasco council, Oregon superintendent of sure from sport and commercial interests, state gov-
Indian affairs Joel Palmer assured Native representa- ernments began implementing conservation
tives that they “would always have the privilege to programs in the late nineteenth century. Many con-
hunt, gather roots and berries, and fish.” These servation laws favored non-Indian commercial and
promises placed all subsistence activities on an equal recreational users over Indians, who found their off-
footing and set no explicit limits on the purpose, reservation subsistence activities increasingly con-
time, or method of taking. Insofar as the Indians strained by a web of regulations governing illegal
understood the phrase “in common with the gear, trespassing, licensing, closed seasons, prohib-
whites,” they probably expected to exercise control ited areas, catch limits, and the sale of game or fish.
over American citizens at the fisheries. They cer- When Indians hunted or fished in violation of these
tainly never anticipated the imposition of federal, laws—knowingly or unknowingly—state authorities
state, and tribal laws on a system regulated by cus- arrested and prosecuted them for poaching. Many
tom and kinship. “The way we understood, the also had their guns or gear confiscated, adding to the
white man wouldn’t have any use for salmon, the economic and cultural hardships posed by the
berries and the roots,” recalled John Skannowa, inability to take traditional resources for subsistence,
whose uncle signed the Treaty of Middle Oregon; ceremony, and sale. This concerted assault on their
“[T]he white man wouldn’t eat that and didn’t know treaty rights confounded traditional Indians and
what that food was . . . Joel Palmer indicated that tribal leaders, who generally regarded their foods as
there would be no interference with the Indians’ sacred gifts from the Creator, not the property of

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150 Treaty Responsibility and Reserved Rights

state governments representing alien intruders. “I River. Native labor remained essential in the forma-
was not brought from a foreign country and did not tive years of the packing industry, in which Indians
come here,” protested Chief Meninock of the worked as both fishers and processors, but its rapid
Yakama Nation in 1915. “I was put here by the Cre- growth and capitalization soon marginalized them.
ator. We had no cattle, no hogs, no grain, only berries Cannery-operated traps and wheels forced Indians
and roots and game and fish. We never thought we away from their accustomed fishing sites and
would be troubled about these things, and I tell my reduced the need for their labor, while the white
people, and I believe it, it is not wrong for us to get commercial fleet expanded dramatically. By the early
this food.” 1900s, many Indians had lost access to traditional
In their defense, Indians argued that federal reef and riverine fisheries. As few could afford the
treaties protected their rights to hunt and fish with- equipment necessary to pursue fish at sea, most fell
out interference from the states. State courts typi- into a state of poverty and dependency that per-
cally dismissed the concept of reserved rights, and sisted into the 1970s. Although tribal leaders
the federal government proved an inconstant ally at appealed to the federal government for help, the BIA
best. In the case Ward v. Race Horse in 1896 (163 U.S. moved slowly and hesitantly because it favored a
504), the U.S. Supreme Court held that Wyoming’s policy of assimilation based on agriculture. Fishing,
game laws superseded Shoshone-Bannock treaty hunting, and gathering represented relics of “sav-
rights because of the Constitution’s “equal footing” agery” that the government wished to stamp out
doctrine. According to this line of argument, Indian and replace with a “civilized” lifestyle. Therefore,
treaties negotiated during the territorial period were despite the promises made in the treaties, federal
implicitly abrogated when a territory joined the officials allowed many of the region’s prime fisheries
Union with the all rights and powers of the existing to pass into non-Indian hands.
states. In the Pacific Northwest, state courts also The first significant victories for Indian treaty
used the phrase “in common with the citizens of the rights came along the Columbia River, where conflict
Territory” to contend that Indians had only the same erupted when American settlers and packing com-
rights as non-Indians and were thus equally subject panies began claiming aboriginal fisheries and
to state laws. Treaty tribes in Washington and Ore- impeding Indian access to the river. In 1884, a white
gon repeatedly challenged this interpretation in the homesteader named Frank Taylor ran a barbed-wire
federal courts, and Northwest fishing rights cases fence across the main path to the Tumwater fishery
reached the Supreme Court seven times during the near The Dalles, Oregon, arguing that the barrier
twentieth century. On each occasion, the Court was necessary to stop Indians from camping and
affirmed the existence of Indian treaty rights but pasturing horses on his land. The Justice Depart-
failed to foreclose fully the states’ power to regulate ment responded with a lawsuit on behalf of the
them. State governments, in turn, continued to cite Yakama Nation, U.S. v. Frank Taylor (3 Washington
Race Horse and to prosecute Indians for hunting and Territory 88), which reached the Supreme Court of
fishing in violation of state regulations. Washington Territory in January 1887. While recog-
nizing the defendant’s title to the land, the court
held that “the Treaty privilege of the Indians to take
Hunting and Fishing Rights fish was an easement upon it at the time the govern-
in the Pacific Northwest ment conveyed the title and that such title did not
Fishing rights have been the greatest source of con- extinguish the easement.” In other words, treaty
tention in the Pacific Northwest because of their sig- Indians had the right to cross private property when
nificance in traditional Indian culture and their passing to and from their traditional fishing sites.
immense commercial value. Native Americans of the This opinion reversed the initial ruling of the district
region faced few challenges to their fishing rights court and remanded the case for a new trial, which
before the 1880s. In most places, Indians supplied upheld the treaty and produced an injunction
the small European American market for salmon against Taylor in October 1887. Other fishwheel
and continued to use their traditional sites without owners ignored the ruling, however, forcing the fed-
interference. Following the advent of improved pro- eral government to bring a second lawsuit in 1897
cessing technology, however, salmon became a against Audubon and Linnaeus Winans.
lucrative commodity, and canneries proliferated U.S. v. Winans (198 U.S. 371) became a major
around Puget Sound and along the lower Columbia landmark in the history of federal Indian law. The

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Hunting, Fishing, and Gathering 151

Winans brothers, like Taylor, strung a fence across implemented its first fisheries code forbidding cer-
the trail to the aboriginal Tumwater fishery on the tain traditional techniques such as spearing and
Columbia River. They, too, insisted it was essential to snaring. The following year, the state’s supreme
protect their crops and pasture from Indian ponies, court ruled against two Indians convicted of fishing
yet the brothers lost no time in building a fishwheel with illegal gear and without state licenses. In both
to harvest salmon. Hoping to overturn the Taylor cases, State v. Towessnute (89 Wash. 478) and State v.
precedent, their attorneys raised several new argu- Alexis (89 Wash. 492), the justices held that the defen-
ments to bolster the Winans’s property rights claim. dant’s treaty right to fish “in common” merely gave
In addition to citing the U.S. Supreme Court’s recent him the same privileges as non-Indian citizens. State
ruling in Ward v. Race Horse, the defense contended v. Wallahee (143 Wash. 117) applied the same logic to
that the Winans brothers’ use of a state-licensed Indian hunting on “open and unclaimed lands” out-
wheel gave them a right superior to that of Native side reservation boundaries. Although the Office of
dipnetters, “since wheel fishing is one of the civi- Indian Affairs urged appeals of Alexis and Towess-
lized man’s methods, as legitimate as the substitu- nute, the federal government declined to challenge
tion of the modern combine harvester for the ancient state authority on this issue. The U.S. Supreme Court
sickle and flail.” Even when erected at traditional had recently reaffirmed state regulatory powers in
grounds, the defense team alleged, fishwheels sup- Kennedy v. Becker (241 U.S. 556), a case involving
posedly did not deprive Indians of their common Seneca fishing rights in New York, and the prospects
right, because it “[applied] to no certain and defined for reversal seemed dim. During the 1930s, however,
places.” a general shift toward self-determination in Indian
The federal district court agreed with the affairs created a more favorable climate for tribal
defense and ruled in favor of the Winans brothers, claims and assertions of sovereignty. The Columbia
but the U.S. Supreme Court reversed the lower River treaty tribes pushed for another test case, and
court’s ruling in the spring of 1905. In an eight-to- in 1942 the U.S. Supreme Court handed them a qual-
one opinion delivered by Joseph McKenna, the jus- ified victory in Tulee v. Washington (315 U.S. 681),
tices upheld Yakama rights and established two vital which exempted Indians from state license require-
principles governing treaty interpretation. The first ments. States could still regulate tribal hunting and
stated that treaties must be construed as the Indians fishing for conservation purposes but not by impos-
understood them at the time and “as justice and rea- ing license fees that effectively “[acted] upon the
son demand” because the United States had exerted Indians as a charge for exercising the very right their
superior power over the “unlettered” tribal repre- ancestors intended to reserve.”
sentatives. The second, known as the reserved rights Meanwhile, disagreements within and between
doctrine, held that treaties were “not a grant of the tribes mounted even as they struggled to fend off
rights to the Indians, but a grant of rights from the common threat of state regulation. With salmon
them—a reservation of those not granted.” Putting runs sagging and other fisheries disappearing
these principles into action, the Supreme Court beneath dam reservoirs, many mid-Columbia Indi-
declared that members of the Yakama Nation had ans migrated to the remaining sites between The
retained their existing rights to cross the land, to fish Dalles and Celilo Falls. The Celilo Fish Committee
at usual and accustomed places, and to erect tempo- (CFC), created in 1936 to settle the resulting dis-
rary houses for curing their catches. Neither private putes, provided a forum for competing visions of the
property nor superior technology gave the Winans fishery. Local residents and people with ancestral
family an exclusive claim to the fishery, and they fishing stations viewed treaty rights as a legal
could not restrict the Indians in their use of it. Before umbrella beneath which traditional rules still
closing, however, the Court added a bit of dictum applied. By contrast, newcomers and advocates of
that kept open the door to controversy. At the same tribal control embraced the framework established
time that it affirmed the Indians’ right to fish “at all in the treaties and reinforced through litigation. As
usual and accustomed places,” the ruling did not Andrew Barnhart explained in 1942,
“restrain the state unreasonably, if at all, in the regu-
lation of that right.” I was appointed a fish committeeman from my
The battle over regulation intensified during the Umatilla Reservation to protect my tribal rights.
next thirty years as Indians ran afoul of proliferating I can remember the old people that fished here
fish and game laws. In 1915, Washington State at Celilo—Wyam Indians. But the white man

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152 Treaty Responsibility and Reserved Rights

has come here and ruled your location as a pioneered the strategy in 1954, when they violated a
tribal relation . . . this Committee will not ban on set nets after notifying state agencies of their
determine one individual ownership to one intention to do so. By the mid-1960s, fish-ins had
location. But we must rule equal right. spread to Frank’s Landing on the Nisqually River
and Cook’s Landing on the Columbia, which
The completion of The Dalles Dam in 1957 remained focal points of protest for the next ten
ended the fishery at Celilo but not the controversy. years. Activists such as Billy Frank, Jr. (Nisqually),
By 1961, when Whitefoot v. United States (293 F.2d and David Sohappy, Sr., risked arrest numerous
658) expressly defined treaty rights as tribal prop- times and eventually came to personify the struggle
erty, the Warm Springs and Yakama tribes had joined for the non-Indian public. Some tribal members con-
the Quinault and Tulalip of the Washington coast in sidered fish-ins counterproductive and called the
passing their own fishing ordinances. Traditionalists protestors renegades, but they drew increasing sup-
still objected to the presumption of tribal authority, port from sympathetic Indians and non-Indians
but their protests were largely drowned out by the around the country. The National Indian Youth
climactic confrontation between the tribes and the Council sent Hank Adams and Mel Thom to help
states. organize demonstrations, the Native American
The battle over Northwest Indian fishing rights Rights Fund offered legal assistance, and Janet
peaked in the 1960s and 1970s. Salmon runs had McCloud (Tulalip) mobilized the Survival of Ameri-
reached record lows after a century of overfishing, can Indians Association for a major march on the
habitat destruction, industrial pollution, and dam Washington State capitol. Non-Indian allies included
building. White commercial and sports fishermen the American Friends Service Committee, a Quaker
generally found it easier to blame each other and the social justice organization; the American Civil Liber-
Indians—who took only 5 percent of the catch in ties Union, which defended Muckleshoot fishermen
1970—and the regional media often echoed popular in court; and celebrities such as comedian Dick
claims that tribal fishing endangered the resource. Gregory and actor Marlon Brando, who joined a
Indian court victories further stoked white resent- fish-in in 1964 on the Puyallup River. Brando’s
ment of the “special rights” bestowed by the treaties. arrest, in particular, made the fish-ins national news
Building on the precedent set in Tulee and Makah v. and encouraged further media coverage.
Schoettler (192 F. 2d 224), the decision in Maison v. As protests became more frequent and received
Confederated Tribes of the Umatilla Reservation (312 F. more attention, state reactions and local anti-Indian
2d 169) in 1963 established more stringent criteria for sentiment grew increasingly violent. Some white
state regulation of Indian fishing. The Ninth Circuit fishermen vented their anger by cutting nets, steal-
Court of Appeals, ruling against the Oregon Game ing fish, setting boats adrift, and even threatening
Commission, held that states must prove both the Indians with physical harm. Several Indian fishers
necessity and the indispensability of any conserva- complained of being shot at, and in 1971 Hank
tion regulations imposed on tribal fishing; in other Adams received a bullet wound from two white
words, Indian treaty rights could be curtailed only if men who allegedly said “You . . . Indians think you
restricting other users had failed to protect the own everything.” State police and game wardens
resource. As that case made its way through the also clashed with tribal fishers during raids on off-
court system, however, Washington State cracked reservation fishing sites. Reporters and television
down on Nisqually and Puyallup fishers at the crews captured dramatic images of Indians being
southern end of Puget Sound. Indian activists clubbed, tear-gassed, and dragged across the
responded with a new tactic, the “fish-in,” which ground. State patrol boats shadowed Indian fishing
triggered violent reactions and moved the fishing canoes and sometimes spilled their occupants into
rights controversy into the national spotlight. the water to stop them from setting nets. Just as
Fish-ins posed a direct challenge to state author- scenes of police brutality in Birmingham, Alabama,
ity. Modeled after the contemporaneous sit-ins of the galvanized public support for the civil rights move-
African American civil rights movement, they ment, media coverage of the fish-ins raised a
entailed deliberately breaking the law in order to national outcry and placed mounting pressure on
provoke a response from state authorities, trigger the federal government. In 1966, the Justice Depart-
test cases, and publicize the issue of treaty rights. ment signaled a shift in policy by declaring that it
Puyallup fishers Robert Satiacum and James Young would accept tribal requests to defend Indians

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Hunting, Fishing, and Gathering 153

arrested for fishing off reservation under tribal Indians, and served both “reasonable and neces-
regulations. sary” conservation purposes. If the runs could be
Federal intervention on behalf of the treaty efficiently preserved by other means, including the
tribes began with Puyallup Tribe v. Department of restriction of nontreaty fishing “to the full extent,”
Game, which came to be known as the Puyallup Tril- then the Indian fishery could not be regulated at all.
ogy because it reached the U.S. Supreme Court on Judge Boldt, anticipating resistance to his ruling, fol-
three separate occasions. The case began in 1966, lowed Belloni’s lead in opting to exercise continuing
when Washington sued to prevent Nisqually and jurisdiction over the case and to issue his own
Puyallup tribe members from fishing contrary to interim plan for management of the fisheries.
state laws. Federal attorneys filed an amicus curiae As expected, U.S. v. Washington, the so-called
(“friend of the court”) brief in support of the tribes, Boldt Decision, faced massive opposition from
and the U.S. Supreme Court heard their appeal in Washington State and its large population of com-
1968. Puyallup I (391 U.S. 392) upheld tribal rights to mercial and sports fishermen. Many whites signaled
catch both salmon and steelhead, a migratory trout their disapproval with a wave of political protests
species that the state had classified as a game fish, and illegal fishing in violation of court-ordered clo-
but it also affirmed the state’s power to regulate off- sures. Some individuals made threats of violence
reservation fishing so long as its conservation mea- against Indians and tried to interfere with tribal fish-
sures met “appropriate standards” and did not dis- ing, which led to several tense confrontations on the
criminate against Indians. The following year, U.S. water, while commercial and sports fishing organi-
District Court Judge Robert Belloni applied these cri- zations lobbied for legislation and launched test
teria to the Columbia River in the combined cases of cases to reverse Boldt. Two such lawsuits, Puget
Sohappy v. Smith (302 F. Supp. 899) and U.S. v. Ore- Sound Gillnetters Association v. Moos (565 P.2d 1151)
gon. Going a step further, he also decreed that the and Washington State Commercial Passenger Fishing
treaty tribes must be allowed a meaningful role in Vessel Association v. Tollefson (571 P.2d 1373), received
the regulatory process and guaranteed “a fair and favorable hearings from the Washington State
equitable share” of the catch. While Oregon reluc- Supreme Court in 1977. Although the defendant in
tantly complied with that ruling, Washington contin- each case was the state director of fisheries, Wash-
ued its vigorous enforcement efforts against the ington actually encouraged non-Indian defiance by
tribes of Puget Sound. In 1970, after a heavily armed working aggressively to obstruct and overturn the
force of state wardens and local police attacked a Boldt Decision. State agencies refused to issue regu-
large Puyallup fish camp, the federal government lations guaranteeing the tribal allocation, the state
initiated U.S. v. Washington (384 F. Supp. 312) to clar- attorney general pressed for a high court hearing,
ify the rights of fourteen treaty tribes (later increased state courts dismissed citations against white “out-
to twenty) that chose to participate in the litigation. law” fishers, and the state’s congressional delegation
U.S. District Court Judge George Boldt con- introduced several bills to abrogate all treaty rights.
ducted a thorough review of the evidence and argu- Congress rejected those measures, as it had done
ments with the goal of settling the controversy once with earlier state proposals to buy out tribal fishing
and for all. His decision in the first phase of the trial, rights, but the U.S. Supreme Court did agree to
issued in 1974, shocked state officials and outraged review both the Washington and Puyallup cases,
many non-Indians despite the existence of sound against a backdrop of rising racial animosity.
legal precedents. Taking into account contemporary To the chagrin of Washington State attorney
dictionary definitions and the probable Indian general Slade Gorton, a lifelong opponent of tribal
understanding of the treaties, Boldt interpreted the sovereignty, the Court again upheld Indian treaty
pivotal phrase “in common with the citizens of the rights, with only minor qualifications. In 1973,
Territory” to mean “sharing equally.” Thus, the Puyallup II (414 U.S. 44) had struck down a state ban
tribes had a right to 50 percent of the annual salmon on tribal net fishing for steelhead because it discrimi-
and steelhead harvest (excluding fish caught on the nated against Indians. Four years later, amid the
reservations and for ceremonial or subsistence pur- furor over the Boldt Decision, Puyallup III (433 U.S.
poses) as well as the right to participate in manage- 165) affirmed the allocation of 45 percent of wild
ment of the resource. The state could regulate off- steelhead runs to the tribes. State officials hoped that
reservation fishing only if its measures met the Supreme Court would throw out Judge Boldt’s
appropriate standards, did not discriminate against 50-50 division, but its decision of 1979 in Washington

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154 Treaty Responsibility and Reserved Rights

v. Washington State Commercial Passenger Fishing Ves- Judge Boldt’s hope of ending the controversy
sel Association (433 U.S. 658) merely modified his for- dimmed further in the 1980s and 1990s due to inter-
mula. Whereas Boldt had excluded the ceremonial, and intratribal disputes over harvest allocation and
subsistence, and on-reservation catch from the Indi- the ownership of usual and accustomed fishing sites.
ans’ share, the Court held that those fish should be Although they have common adversaries and a
counted against the tribal allocation. Furthermore, mutual commitment to preserve the salmon, the
the majority opinion fixed 50 percent as a maximum tribes also compete for fish and have not shared their
share, intended to secure “so much as, but not more portions equally. By the mid-1980s, the Lummi had
than, is necessary to provide the Indians with a developed a large ocean fleet capable of catching
livelihood—that is to say, a moderate living.” close to half the entire allocation for the twenty-four
Although the Court failed to define “a moderate liv- treaty tribes in western Washington. Tribes located
ing,” it suggested that the tribes’ allocation could be on southern Puget Sound, with less valuable “termi-
reduced due to dwindling membership or economic nal” fisheries and little capital with which to “gear
development that reduced their reliance on fish. For up,” fear that the Lummi and other northern tribes
the time being, however, the state had to comply will intercept and deplete the runs before others
with the district court’s order and apportion fish on have a chance to fish. The Muckleshoot, Nisqually,
an equal basis. To do otherwise would violate the Puyallup, and Squaxin Island tribes have asked the
supremacy clause of the U.S. Constitution, which courts to ensure more equitable shares, while the
describes treaties as “the supreme law of the land” Skokomish and Klallam tribes have challenged
and therefore binding on state governments. Lummi claims to various fishing areas around Puget
As Washington moved slowly to align its poli- Sound. Competition for an already-scarce resource
cies with Boldt’s initial ruling, Phase II of the trial has also led some treaty tribes, such as the Quinault
tackled two outstanding issues: Did the Indian allo- and Tulalip, to oppose the efforts of nontreaty
cation include hatchery fish, and did the treaties groups seeking federal recognition. Within tribes,
imply a right to environmental protection of fish tensions have developed over the practice of “dou-
runs and fish habitat? Judge William Orrick, who ble-dipping” (fishing with state licenses on days
replaced Boldt upon the latter’s retirement in 1979, closed to Indians), challenges to tribal regulation,
answered both questions positively. The tribes and control of specific fishing sites. The tribes have
needed hatchery fish to replace the wild runs worked to develop management strategies more
destroyed or depleted by environmental degrada- appropriate to their cultures and conceptions of the
tion, he argued, and the state would have no incen- resource, but the continued decline of salmon popu-
tive to rehabilitate salmon habitat or to prevent fur- lations has made it difficult to avoid both internal
ther destruction if Indians could catch only wild and external conflicts.
fish. In a concession to non-Indian economic con- Since the 1970s, the federal government has
cerns, however, Orrick ruled that the state had only generally followed its established pattern of alter-
to refrain from degrading the resource to an extent nately helping and hindering Northwest tribes in the
that would deprive Indians of their “moderate liv- exercise of their rights and the protection of endan-
ing needs.” This ambiguous interpretation limited gered resources. In 1982, federal agents arrested
the tribes’ ability to enjoin activities that harm fish activist David Sohappy and eighteen other Yakama
runs and habitat, and it also failed to define what fishers in an anti-poaching sting operation the press
constitutes a moderate living. They immediately later dubbed “Salmonscam.” Sohappy and his son
appealed, arguing for the restoration of salmon pop- ultimately spent five years in prison, despite the fact
ulations to pre-treaty levels or at least for a higher that government allegations proved vastly
standard of “no significant deterioration.” Mean- overblown, and non-Indians received only fines for
while, the states and various industrial interests the same crime. The Bureau of Indian Affairs then
tried equally hard to overturn Orrick’s ruling, tried to evict the Sohappys and other Indian families
which they deemed a threat to hydroelectric power from the in-lieu fishing sites where they lived, argu-
generation and economic growth. The decision ing that the sites were tribal property and not
stood, though it has been reviewed several times to intended for permanent occupancy. Meanwhile, the
clarify its meaning, and “Boldt II” remains one of Army Corps of Engineers dragged its heels in com-
the most controversial and potentially far-reaching pleting additional in-lieu sites promised fifty years
aspects of U.S. v. Washington. earlier when Bonneville Dam inundated traditional

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Hunting, Fishing, and Gathering 155

fishing locations in the Columbia River gorge. The seventeenth century, the extension of the European
corps has also joined the Bonneville Power Adminis- fur trade into the Great Lakes region disrupted the
tration in opposing tribal efforts to make the dams aboriginal economy of the Ottawa and Ojibwe
and the river more hospitable for salmon. The tribes, (Chippewa/Anishinaabe), gradually drawing them
in turn, have sued several times to force the Com- into a market system over which they had little con-
merce Department to reduce the ocean seasons set trol. Initially, many Indians adapted to this new eco-
by the Pacific Marine Fisheries Commission (PFMC). nomic network by integrating wage labor into their
Although the courts have resisted tribal demands, subsistence cycle, but the commodification of natural
they have required the PFMC and other agencies to resources eventually undermined Native autonomy
work with the tribes in creating mutually acceptable and self-sufficiency. By 1900, market hunting and
management plans. logging had decimated the animal populations and
The shift toward cooperative management is pine forests of northern Michigan, Wisconsin, and
one of several important legacies of the long struggle Minnesota. Indians maintained a toehold in the fish-
over Northwest Indian treaty rights. Most of the ing industry as wage laborers and continued their
tribes concerned in U.S. v. Oregon and U.S. v. Wash- seasonal migrations as best they could. As the white
ington currently operate their own fish hatcheries fishing industry developed, however, the same capi-
and employ their own harvest managers, enforce- tal-intensive operations that forced the Indians off
ment officers, biologists, and technicians. They also the lakes systematically depleted one native species
work collectively through the Northwest Indian after another. Industrial pollution and lamprey infes-
Fisheries Commission, founded in 1974 to coordi- tation (caused by the St. Lawrence Seaway) aggra-
nate the regional treaty councils in western Washing- vated the effects of overfishing, leading to the com-
ton, and the Columbia River Inter-Tribal Fish Com- plete collapse of the Great Lakes commercial fishery
mission. In addition to providing technical in the 1950s. The surrounding states restocked the
assistance to the tribes and information to the non- waters with popular game fish such as trout and
Indian public, these organizations consult and nego- coho salmon, but this lucrative sports fishery soon
tiate with a bewildering array of state, federal, and ran headlong into the rising Native American con-
international bodies. The tribes have thus become sciousness of the postwar decades.
key players in fisheries management and environ- The Indian peoples of the Great Lakes, like
mental politics, fueling a resurgence of tribal sover- those of the Pacific Northwest, had long borne the
eignty to match the economic and cultural revitaliza- brunt of state conservation efforts in spite of their
tion many reservations experienced following the treaty-reserved rights to hunt, fish, and gather on
Boldt Decision. ceded lands. Wisconsin first proscribed gillnetting in
The Makah, whose treaty of 1854 also reserved the early 1850s, and in 1868 the state began setting
the right to hunt whales, reported a similar upsurge seasons for deer, game birds, and fur-bearing ani-
in tribal pride when they resumed the practice after mals. Although these regulations were not strictly
an eighty-year hiatus. Makah whalers had voluntar- enforced until the 1880s, they effectively reduced the
ily stopped hunting in the 1920s, when gray whales land area within which Indians could pursue their
became endangered due to commercial exploitation, traditional economy without breaking the law. The
but in 2001 the tribe successfully petitioned the fed- expansion of state hatchery programs and the
eral government and the International Whaling Northwoods tourist industry in the early twentieth
Commission for permission to take five whales per century encouraged fish and game officials to
year. The resulting protests and court challenges tighten their grip on tribal hunting and fishing. Wis-
show that treaty rights and tribal traditions, though consin even sought to impose its regulations on cer-
now on firmer legal footing, remain poorly under- tain reservation lands in the 1930s, by which time
stood by much of the non-Indian public. “violating” had become a way of life and a source of
pride for many Indians. Midwestern state courts
proved just as unsympathetic to treaty rights as had
Hunting and Fishing Rights those in the Northwest. In 1930, in the case People v.
in the Upper Midwest Chosa, for instance, several members of Michigan’s
The controversy over Indian treaty rights in the Keweenaw Bay band of Chippewa stood trial for
Upper Midwest has followed a trajectory similar to fishing contrary to state regulations. The Michigan
the struggle in the Pacific Northwest. Starting in the Supreme Court concluded that they no longer had

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156 Treaty Responsibility and Reserved Rights

any off-reservation treaty rights because “when one harassed tribal fishers and destroyed their gear as
becomes a citizen of the United States [as Indians state wardens and police looked on. State officials
had in 1924], he casts off both the rights and obliga- made political hay of the issue and pushed for con-
tions of his former nationality and takes on those gressional abrogation of treaty rights. Michigan’s
which pertain to citizens of the country.” intransigence prevented a resolution to the dispute
Native hunters and fishers in Michigan moved until 1985, when a new judge appointed Francis
from covert evasion to outright defiance of state laws McGovern to negotiate a settlement out of court. The
during the 1960s. In 1965, stirred by news of the subsequent Sault Ste. Marie Agreement split the fish-
Northwest fish-ins, William Jondreau of the L’Anse ery into state and tribal zones and compensated the
band of Chippewa tested his rights under their 1854 tribes for their diminished rights, but it offered little
treaty by informing state officials of his intention to to the small-boat Indian fishers who found them-
net lake trout out of season. Six years later, State of selves confined to less productive northern waters.
Michigan v. William Jondreau (384 Mich. 539) reached Similar events transpired in Wisconsin, where
the state supreme court, which overruled one of its Fred and Mike Tribble of the Lac Courte Oreilles
own opinions (Chosa) and upheld the treaty. The (LCO) band of Chippewa initiated a test case in 1974.
implications of Jondreau’s victory remained uncer- Following their arrest for spearfishing out of season
tain because few of Michigan’s Indians were party to and off the reservation, the tribe filed a federal suit
the agreement of 1854, but the ruling helped inspire against Lester Voigt, head of the Wisconsin Depart-
further litigation. In the case People v. LeBlanc of 1976 ment of Natural Resources (WDNR). U.S. District
(399 Mich. 31), brought by Bay Mills band member Court Judge James Doyle initially determined that
Albert LeBlanc, the Michigan Supreme Court the Indians could not hunt, fish, and gather off the
affirmed Chippewa and Ottawa fishing rights under reservation free of state regulation. He contended
the treaty of 1836. Citing the precedent set in that, whereas the treaties of 1837 and 1842 had
Puyallup I, the court held that the state’s ban on gill- expressly reserved usufructuary rights, the treaty of
netting could only be applied to Indians if the state 1854 had not done so, thereby implicitly suspending
first showed that it was necessary for conservation them. In 1983, however, the U.S. Court of Appeals
and did not discriminate against them. Skeptical of overturned Doyle’s decision in La Courte Oreilles v.
the outcome in the state courts, the Bay Mills Com- Voigt (700 F. 2d 341) and remanded it to the district
munity and the Sault Ste. Marie tribe of Chippewa court for clarification. Commonly known as LCO I
also took action in federal court. The U.S. Depart- or the Voigt Decision, the appeals court ruling held
ments of Justice and Interior intervened on their that explicit language would have been necessary to
behalf, and their case reached the U.S. District Court suspend treaty-reserved rights, given their legal
in 1979. standing and the Indians’ interpretation of the treaty
U.S. v. Michigan (471 F. Supp. 192) ultimately of 1854. The state could only regulate those rights in
brought mixed results for the Indians. In the opin- the interests of conservation, public health, or safety
ion, Judge Noel Fox affirmed Chippewa and Ottawa and then only if the regulations were reasonable and
treaty rights to fish the Great Lakes with modern necessary to preserve a particular species, were the
technology and without regard to state law. “The least restrictive possible, and did not discriminate
right is not a static right today any more than it was against Indians. Judge Doyle’s adjudication of the
during treaty times,” he wrote, and therefore it was case continued until 1991, producing eight subse-
not limited as to the species and origin of fish or the quent rulings (LCO II-IX) to define the exact scope of
purpose, time, or manner of taking, as long as the Chippewa rights, while the controversy raged out-
Indians obeyed tribal and federal regulations. The side the courtroom.
U.S. Supreme Court refused to hear the state’s The furor over the Voigt Decision in northern
appeal. The Michigan Department of Natural Wisconsin rivaled the earlier backlash against the
Resources (MDNR), in turn, continued to enforce its Boldt Decision. White sportsmen bitterly denounced
regulations against Indian fishers and failed to pro- the court’s alleged extension of “unlimited rights” to
tect them against white vigilantes affiliated with the Indians under “old treaties,” echoing the
Stop Gill Netting and other anti-treaty groups that WDNR’s claim that tribal hunting and fishing would
sprang up in the wake of the ruling. Spurred by destroy the resources. State-sponsored studies have
lurid MDNR and press portrayals of Indian fishing shown that Indian spearfishers and gillnetters nor-
as a threat to conservation and tourism, sportsmen mally take less than 3 percent of the annual walleye

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Hunting, Fishing, and Gathering 157

and musky harvests on northern lakes, while the consensus on the meaning of the decision. Tribal
tribal deer harvest remains lower than the yearly leaders agreed to define treaty rights as tribal and
roadkill rate. Nevertheless, anti-Indian sentiment not individual property, but they quibbled over
flared under the influence of economic recession and which rights to prioritize and how much to demand
ill-informed media coverage. Blaming Indians for from the state. The Lac Courte Oreilles and Lac du
the decline of the tourist industry, anti-treaty groups Flambeau (LdF) bands took the most aggressive
such as Protect Americans’ Rights and Resources stance. LCO tribal members generally preferred
(PARR) and Stop Treaty Abuse-Wisconsin (STA-W) hunting over fishing, though, whereas the Mole
spouted racist rhetoric and encouraged their mem- Lake band expressed more interest in protecting its
bers to disrupt the spearfishing season. Signs and rights to harvest wild rice. The St. Croix tribal coun-
bumper stickers proliferated, proclaiming, “Save a cil initially wanted nothing more than free state fish-
Walleye, Spear an Indian,” and angry crowds gath- ing licenses, leading LdF spearer Tom Maulson to
ered at boat landings to hurl rocks and racial slurs at deride them as the “Zebco tribe” (Zebco being a
Chippewa fishers. Out on the water, non-Indian popular brand of fishing tackle). Maulson’s Wa-Swa-
boats tried to block lake access, harassed spearfish- Gon Treaty Association organized the fight against
ers with spotlights, and attempted to swamp their the state’s buyout proposal, which some tribal mem-
vessels. Some Indians even reported receiving death bers considered reasonable because only a minority
threats or hearing gunshots, yet local police and of Chippewa still exercised their treaty rights. Wa-
local courts did little to curtail the protests on the Swa-Gon supporters countered this argument by
grounds that they were protected by the First encouraging the revival of cultural traditions and
Amendment. transforming the fishing spear and the torch (histori-
Meanwhile, despite Governor Anthony Earl’s cally used to “shine” walleye at night) into key sym-
call for cooperation between state agencies and tribal bols of Chippewa identity. They also advocated a
governments, many bureaucrats and politicians strategy of nonviolence on the lakes and welcomed
worked hard to obstruct and overturn the Voigt the presence of non-Indian “Witness in Wisconsin”
Decision. Early interim agreements, intended to observers at the landings. Other spearfishers, by con-
allow for the meaningful exercise of Chippewa trast, counseled militant self-defense and regarded
rights while litigation continued, proved so restric- the witnesses as an unnecessary provocation to local
tive that some tribal leaders considered them a bad whites.
joke. The WDNR also imposed excessively low bag Minnesota Chippewa have likewise divided at
limits on non-Indian anglers, sparking increased times over the best approach to resolving the treaty
hostility, which in turn compelled Chippewa fishers rights controversy. In 1988, the Boise Forte, Grand
to voluntarily reduce their catches. Republican con- Portage, and Fond du Lac bands negotiated an
gressman Frank Sensenbrenner introduced an agreement with the state to settle a lawsuit Grand
unsuccessful treaty abrogation bill in 1987, while Portage had brought to affirm its rights under the
Wisconsin’s entire congressional delegation signed a treaties of 1837 and 1854. By signing the agreement,
letter threatening tribal governments with drastic the bands consented to stop or limit the exercise of
budget cuts if they refused to curb off-reservation certain off-reservation rights in return for an annual
hunting and fishing. Two years later, a tribal referen- payment from the state and cooperative enforcement
dum on the Lac du Flambeau reservation rejected a of fish and wildlife codes. Fond du Lac subsequently
$42 million buyout of the band’s rights, proposed by withdrew from the agreement, however, choosing to
the state attorney general. Other reservations proved return to court for an adjudication of its rights. The
more amenable to state leasing proposals, however, Mille Lacs band also sued the state in 1990, seeking a
and in 1991 the Chippewa collectively agreed not to declaratory judgment that they retained usufructu-
appeal their loss in LCO VIII (timber rights) or seek ary rights under the treaty of 1837 and an injunction
back damages if the state would respect the other against state interference with those rights. Nine
rulings. years later, the U.S. Supreme Court upheld the treaty
The battle in the courts and on the lakes in Minnesota v. Mille Lacs Band of Chippewa Indians
exposed significant cultural and strategic differences (526 U.S. 172) by a narrow five-to-four vote. Six
within and among the nine Ojibwe bands in Wiscon- bands of Wisconsin Chippewa intervened in the suit,
sin. Following their victorious appeal of LCO I, they demonstrating the extent to which the tribes share
formed the Voigt Inter-Tribal Task Force to reach a common interests despite their various differences.

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158 Treaty Responsibility and Reserved Rights

They cooperate through the Great Lakes Indian Fish subject of litigation and legislation. Wild rice
and Wildlife Commission (GLIFWC) to coordinate (manoomin), a staple of the Ojibwe diet since the sev-
conservation and enforcement efforts, disseminate enteenth century, offers a prime example of this pat-
information to the public, gather scientific data, and tern. All the Chippewa treaties in the Great Lakes
confront environmental threats such as mercury con- region either explicitly or implicitly reserved the
tamination. Thus, in the Upper Midwest as in the right to gather wild rice on ceded lands. Despite fed-
Pacific Northwest, the struggle for treaty rights has eral efforts to replace rice harvesting with “civilized”
stimulated a revitalization of tribal governance and agriculture, most Chippewa continued to gather
intertribal cooperation as well as renewed interest manoomin well into the twentieth century, typically
and pride in Native traditions. taking enough to supply both their own needs and
Currently, the criteria for state regulation of the small non-Indian market. During the 1960s, how-
Indian hunting and fishing rights depend on the par- ever, the introduction of combine harvesters and
ticular treaty or statute and the various federal, state, paddy ricing enabled whites to gain control of the
and tribal interests involved. Generally speaking, expanding industry. Although many Chippewa had
tribes may regulate on-reservation hunting and fish- readily adopted earlier technological advances, they
ing free from state interference. In some cases, how- could not afford the expensive new machines and
ever, tribal governments lack the authority to pre- protested their destructive impact on natural rice
vent non-Indians from hunting or fishing on beds. Minnesota eventually banned mechanical har-
reservation lands that are not owned by individual vesters and passed conservation laws to protect the
Indians or by the tribe itself. Furthermore some fed- resource, but not before overproduction had ruined
eral conservation laws (e.g., the Eagle Protection Act) many rice lakes and glutted the market. Falling
preempt both on- and off-reservation treaty rights. prices forced more Indians out of the market, while
State governments may regulate off-reservation industrial pollution and resort development contam-
hunting and fishing only when they present a suffi- inated or closed off access to many of the remaining
cient conservation or safety risk. To justify such reg- rice beds. By the 1970s, few Chippewa harvested
ulation, the state must demonstrate that a significant manoomin commercially, though many still gather it
hazard exists, that the state cannot meet its objec- for subsistence and ceremonial purposes today.
tives by regulating non-Indians alone, and that the As with hunting and fishing rights, state regula-
regulation is the least restrictive alternative avail- tion of ricing presented a problem for tribes without
able. Cooperative management has become the new sizable rice lakes on their reservations. Conse-
paradigm in resource conservation, and negotiation quently, several bands have sued to secure their
has gradually replaced litigation as the preferred rights to gather off reservation, starting in 1939 with
means of dispute resolution between states and U.S. v. 4,450.72 Acres of Land (72 F. Supp. 167). That
tribes. Tribal governments, in particular, have grown case, brought by the federal government on behalf of
more cautious about going to court, as states’ rights the Minnesota Chippewa, prompted Congress to
and property rights ideologies have resurged within establish the Wild Rice Lake Reserve for their exclu-
the federal judiciary and the national legislature. sive use. Under state law, however, Indian har-
Still, having fought so hard to protect their hunting vesters had to pay license fees and accept oversight
and fishing rights, Indians must continue to fight to by the Department of Game and Fish (DGF) even
ensure that the resources do not disappear. After all, when ricing on the reserve. Many Chippewa simply
as Judge William Orrick noted in reference to the ignored the license requirement, and DGF harass-
Boldt Decision, “fifty percent of nothing is nothing.” ment became a regular feature of harvest time. The
Minnesota Supreme Court upheld the state’s regula-
tory role in State v. Keezer (292 N.W.2d 714), a deci-
Gathering Rights sion in 1980 stemming from the arrest of two
Treaty-reserved gathering rights have generally Chippewa ricers, but the U.S. Supreme Court’s
caused less conflict than tribal hunting and fishing recent ruling in Mille Lacs forced the state back to the
because many food and medicinal plants harvested table. Wisconsin has also entered into negotiations
by Native Americans possess little appeal or com- since 1987, when LCO III (653 F. Supp. 1420)
mercial value for non-Indians. In cases where com- affirmed Ojibwe rights to harvest wild plants on all
petition does exist, or where ecological changes have public lands within the bands’ ceded territories.
caused scarcity, gathering rights have become the Although the state retains some regulatory power

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Hunting, Fishing, and Gathering 159

over wild rice, numerous other species fall under a cans in the United States (excluding Alaska) now
memorandum of understanding (MOU) reached depend on hunting, fishing, and gathering for sub-
between the U.S. Forest Service and ten GLIFWC sistence, those activities have become powerful
tribes. A model of cooperative management, this symbols of Indian identity. To those who still exer-
MOU provides for tribal enforcement of tribally cise them, treaty rights are integral to cultural and
approved codes, including a requirement that har- religious practices that define what it means to be a
vesters obtain annual off-reservation permits. tribe member. Accordingly, many elders lament the
In the Pacific Northwest, treaty tribes reserved fact that younger people often express little interest
“the privileges of hunting, gathering roots and in traditional hunting, fishing, and gathering prac-
berries, and pasturing their horses and cattle upon tices. “Today it’s hard to be an Indian person, and
open and unclaimed land.” Their subsequent it’s easy to be white,” observed Edward James
defense of these “privileges” revealed that they (Umatilla) during the sesquicentennial commemo-
applied the phrase “usual and accustomed places” ration of his tribe’s treaty of 1855. “If we don’t hunt,
to all subsistence activities—not just fishing—and fish, dig roots and pick berries then what are we?
they logically tried to use rights won in fishing litiga- We’re certainly not being Natitayt [Indian people].”
tion to support their claims to off-reservation gather- To protect the old ways, however, Native Americans
ing sites. At a hearing in 1928 in Washington, D.C., have also developed the legal, political, and scien-
for example, Noah James Saluskin of the Yakama tific expertise necessary to secure a place at the
Nation testified that “my forefathers reserved the negotiating table. Contemporary tribal leaders
right to fish and hunt, gather roots outside the reser- understand that both traditional and modern forms
vation on ceded lands and I think I have a right to of knowledge must be passed on to future genera-
gather roots and berries.” In 1932, when an army of tions and that the battle to uphold their rights has
unemployed non-Indians invaded tribal huckleberry not ended either in the court of law or in the court of
fields in the Cascade mountains, local Forest Service public opinion. “There are citizens who believe that
officials made an effort to accommodate Yakama the treaties are not living documents, that they are
claims by setting aside some three thousand acres out of date, obsolete and no longer useful,”
for exclusive Indian use. This “handshake agree- reminded Roberta Conner, director of the Tamasts-
ment” has survived into the present, but it took a likt Cultural Institute on the Umatilla Reservation.
federal court decision in 1984 (State of Washington v. She warned, “Indeed, treaties were the means
Miller, 689 P.2d 81) to establish that there is “no oper- through which all others obtained legal title to
ative distinction” between treaty-reserved “rights” Indian lands, and it would behoove non-Indians to
and “privileges.” Fifteen tribes party to U.S. v. Wash- protect and uphold the treaties today.”
ington also returned to court in 1989 to clarify their Andrew H. Fisher
rights to harvest shellfish on privately owned tide-
lands. Five years later, U.S. District Court judge References and Further Reading
Edward Rafeedie held that the treaties’ “in com- Bentley, Shannon. 1992. “Indians’ Right to Fish: The
mon” language meant that the tribes had reserved Background, Impact, and Legacy of United
gathering rights to half of all shellfish from their States v. Washington.” American Indian Law
usual and accustomed places, except those specifi- Review 17(1): 1–35.
cally set aside for non-Indian shellfish cultivation Boxberger, Daniel L. 1989. To Fish in Common: The
Ethnohistory of Lummi Indian Salmon Fishing.
purposes. As with hunting and fishing rights, how-
Lincoln: University of Nebraska Press.
ever, securing access to shellfish beds and berry Bruun, Rita. 1982. “The Boldt Decision: Legal Victory,
fields does not guarantee that there will be adequate Political Defeat.” Law and Policy Quarterly 4:
and uncontaminated resources to harvest. Pollution, 271–298.
habitat destruction, and commercial exploitation still Cohen, Fay G. 1986. Treaties on Trial: The Continuing
threaten to render treaty rights a set of empty Controversy over Northwest Fishing Rights. Seattle:
promises. University of Washington Press.
Danielsen, Karen C., and Jonathan H. Gilbert. 2002.
The struggle to preserve these hard-won rights
“Ojibwe Off-Reservation Harvest of Wild
will likely continue in the future as ongoing eco- Plants.” In Nontimber Forest Products in the
nomic competition and environmental degradation United States, eds. Eric T. Jones, Rebecca J.
take their toll on indigenous plant, fish, and animal McLain, and James Weigand, 282–292.
populations. Although relatively few Native Ameri- Lawrence: University Press of Kansas.

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160 Treaty Responsibility and Reserved Rights

DeMallie, Raymond J. 1980. “Touching the Pen: McLain, and James Weigand, 273–281.
Plains Indian Treaty Councils in Ethnohistorical Lawrence: University Press of Kansas.
Perspective.” In Ethnicity in the Great Plains, ed. Landau, Jack L. 1980. “Empty Victories: Indian Treaty
Frederick C. Luebke, 38–51. Lincoln: University Fishing Rights in the Pacific Northwest.”
of Nebraska Press. Environmental Law 10: 413–456.
Doherty, Robert. 1993. Disputed Waters: Native Nesper, Larry. 2002. The Walleye War: The Struggle for
Americans and the Great Lakes Fishery. Lexington: Ojibwe Treaty and Spearfishing Rights. Lincoln:
University Press of Kentucky. University of Nebraska Press.
Fisher, Andrew H. 1999. “This I Know from the Old Satz, Ronald N. 1991. Chippewa Treaty Rights: The
People: Yakama Indian Treaty Rights as Oral Reserved Rights of Wisconsin’s Chippewa Indians in
Tradition.” Montana, The Magazine of Western Historical Perspective. Eau Claire: Wisconsin
History 49: 2–17. Academy of Sciences, Arts and Letters.
Fisher, Andrew H. 2004. “Tangled Nets: Treaty Rights Ulrich, Roberta. 1999. Empty Nets: Indians, Dams, and
and Tribal Identities at Celilo Falls.” Oregon the Columbia River. Corvallis: Oregon State
Historical Quarterly 105 (Summer): 178–211. University Press.
Fixico, Donald L. 1987. “Chippewa Fishing and Vennum, Thomas, Jr. 1998. Wild Rice and the Ojibway
Hunting Rights and the Voigt Decision.” In An People. St. Paul: Minnesota Historical Society
Anthology of Western Great Lakes Indian History, Press.
ed. Donald L. Fixico, 481–519. Milwaukee: