Treaties and agreements with Indians in the United States

Significance: American Indians generally look upon their treaties as permanent and inviolate compacts between two sovereign nations. European Americans, in contrast, have tended to consider the treaties to be temporary arrangements subject to alteration and renegotiation. This difference in perspective has been a source of much misunderstanding and bitterness.

Following the American Revolution, the US government continued the European tradition of treating American Indian tribes as independent foreign nations, which meant negotiating formal treaties for establishing peace, exchanging land, and recognizing mutual obligations. The government also negotiated agreements or accords, which were less formal and usually dealt with fewer issues. In 1871, Congress passed the Indian Appropriation Act, stating that the American Indians no longer belonged to their own sovereign nations, and treaty making ended. The existing treaties remained valid, unless explicitly abrogated or changed by a law of Congress. Until the twentieth century, the US government often did not look upon American Indian treaties as important commitments. Since World War II, however, American Indians have become increasingly effective in using the federal courts to obtain broad interpretations of treaty rights.

Nature of the Treaties

The US Constitution authorizes the president to negotiate treaties with foreign nations, and these treaties become legally binding after approval by a two-thirds vote in the Senate. Because they are recognized as part of the “supreme law of the land,” treaties have the same legal standing as laws passed by Congress. The concept of “supreme law” also means that treaty rights are a matter of federal jurisdiction, and that state governments must follow legal decisions made in federal courts. This is significant, because state governments, reflecting local opinion, often oppose treaty provisions such as the right to hunt and fish off reservation lands.

From 1787 until 1871, the US government negotiated about 800 formal treaties with various American Indian tribes and bands, and the Senate ratified some 367 of these into law. The Secretary of War was responsible for negotiating treaties until 1849, when the Office of Indian Affairs was transferred to the Department of the Interior. In 1871, the Indian Appropriation Act, which declared that tribes were not independent nations, ended the practice of contracting by treaty, but the act left the existing treaties in place unless explicitly modified by Congress. Thereafter, the US government continued to enter into agreements with the tribes, but Congress increasingly directed American Indian policy by statute. Although Congress passed a statute recognizing all American Indians as citizens in 1924, the tribes retained attributes of sovereignty necessary to negotiate agreements and assert treaty rights.

Except for the early period, the US government was generally in a position of dominance when it negotiated treaties with American Indian tribes. Following armed conflicts, the government tended to be especially harsh in its demands. Even in the best of conditions, the treaties were written in English, and the American Indians frequently did not clearly understand what was written. Basic assumptions, such as the very idea of land ownership, were often foreign to American Indian cultures. In addition, the government frequently chose to negotiate with cooperative individuals who were not recognized as legitimate negotiators by tribal majorities. In some cases, as with the Cherokee treaty of removal in 1835, the Senate ratified treaties that had been repudiated by the American Indians.

American Indian treaties are especially important for the determination of land claims. About 230 of the treaties included a delineation of boundaries based on a cession of land from the tribe to the US government, with reserved lands (called reservations) for the use of the tribe. Many of the treaties also recognized the retention of hunting and fishing rights in the ceded territories. The treaties usually stated that the tribe would acknowledge the authority of the United States, and the US government promised to provide food and services for the tribe. The treaties generally were silent or unclear concerning whether various provisions were to be permanent or temporary.

Interpretations of Treaties

Because treaties are legal documents, the US Supreme Court has the final authority in determining their meanings. When the language of a treaty is clear, it is applied as written. Because the language is often very unclear, however, the Supreme Court has gradually developed “rules of construction” for resolving disputes. As compensation for the disadvantages of the tribes during the treaty-making process, ambiguities are normally resolved in favor of the American Indian perspective, and federal courts attempt to interpret the language as it would have been reasonably understood by the tribal leaders responsible for the negotiations.

In the 1960s and 1970s, for example, some of the most controversial interpretations have involved the meanings of treaties in regard to the rights of American Indians to fish and hunt with traditional methods in the lands ceded to the government. The treaties tended to use vague language such as “at the pleasure of the president,” but American Indian negotiators were frequently led to believe that hunting-fishing rights would continue as long as the American Indians were peaceful. Since 1968, federal courts have ruled again and again that these rights remain valid unless they have been clearly and explicitly abrogated by an act of Congress. In a major case in 1974, a US District Court of Washington State ruled that American Indian tribes had the right to one-half of the salmon harvest, and in subsequent years, there were similar rulings in several states, including Wisconsin and Minnesota. Many non-Indian sports fishers and hunters bitterly resented these decisions, resulting in demonstrations and even threats of violence.

Abrogation of Treaties

If there is an inconsistency between the terms of a treaty and a congressional statute, the more recent of the two is legally binding. Based on this principle, the Supreme Court in Lone Wolf v. Hitchcock (1903) reaffirmed that Congress has the full authority to abrogate or modify any treaty. The Endangered Species Act of 1973, for instance, overruled those treaties that included the right to hunt eagles on reservations. If Congress wishes to make changes in a treaty, however, this intent must be clear and explicit in a statute. If there is any doubt about the meaning of a statute, the Supreme Court interprets it in ways that uphold relevant treaties.

Milestones in American Indian Treaties

In contrast to treaties made with foreign countries, treaties with American Indians often establish property rights. The Fifth Amendment guarantees that there be “just compensation” for any property that is “taken” for public use. The power of Congress to abrogate treaties, therefore, does not release it from the duty of providing fair payment for any taking of land or other property. Frequently in the past, of course, the federal government did take property without compensation. In 1946, Congress passed the Indian Claims Commission Act to allow tribes to seek indemnities for their lost property.

During the 1950s, powerful members of Congress wanted to put an end to American Indian treaties. Their long-term goal was to promote assimilation, which they argued would produce greater opportunities and equality. As a first step, they pursued “termination” of the political relationship existing between the federal government and the tribes. Based on the termination law of 1954, numerous small tribes lost most of their claims to sovereignty and many of their treaty privileges. In Menominee Tribe v. United States (1968), however, the Supreme Court ruled that American Indians retained those treaty rights that were not explicitly mentioned in the termination law, including the right to hunt and fish. President Richard M. Nixon repudiated the termination policy in 1970, and gradually most tribes regained their pre-termination status.

In 1972, the Trail of Broken Treaties protest called for the recognition of greater tribal sovereignty and the return of the treaty-making process. Although the protest did not obtain its announced goals, the resulting publicity appeared to produce a greater public respect for the treaties. By that date, the termination policy found relatively few supporters, and a firm majority of Congress appeared to accept the idea that respect for treaty rights, as interpreted by the courts, is a question of national honor.

Bibliography

Burt, Larry. Tribalism in Crisis: Federal Indian Policy. Albuquerque: U of New Mexico P, 1982. Print.

Canby, William. American Indian Law. St. Paul: West, 1983. Print.

Deloria, Vine, Jr. American Indian Policy in the Twentieth Century. Norman: U of Oklahoma P, 1985. Print.

Harjo, Suzan Shown. Nation to Nation: Treaties between the United States and the American Indian Nations. Washington, DC: Natl. Museum of the American Indian, 2014. Print.

Kappler, Charles. Indian Treaties, 1778–1883. New York: Interland, 1972. Print.

Prucha, Francis. American Indian Treaties: The History of a Political Anomaly. San Jose: U of California P, 1995. Print.

Satz, Ronald. Indian Treaty Rights. Madison: Wisconsin Academy, 1991. Print.

Washburn, Wilcomb. Red Man’s Land/White Man’s Law. New York: Scribner, 1971. Print.

Wunder, John. “Retained by the People”: A History of the American Indians and the Bill of Rights. New York: Oxford, 1994. Print.