For nearly 100 years, from 1778 to 1869, the United States negotiated treaties with Native American nations. The U.S. Senate ratified approximately 370 treaties during this period in pursuit of land and other resources. These treaties, considered legally binding agreements, have been a critical part of the Native American past and are of continuing importance to tribal governments today.

Native Perspectives on Treaty Making

More than 560 federally recognized tribal governments have entered into several hundred treaties, both ratified and unratified, with the United States. From nation to nation, the customs, laws, languages, and philosophies greatly differ. It follows that the concepts of treaty making and diplomacy are distinctive as well. Many differing factors lead to negotiations, depending on the Native groups involved. Although treaties were common among the tribes in the southeastern United States, the Woodlands (eastern United States), the Great Plains, and the Northwest, many groups never entered into treaties and some negotiated treaties that were never ratified either by the United States or by their tribal citizens.

Indigenous nations approached the treaty-making process in vastly different ways, according to the political, social, and cultural contexts. The process involved leaders who made sincere assessments of the difficulties faced by their citizens and made decisions to enter into treaties even though the will of the people did not wish to enter into treaties. Other leaders entered into treaties that directly benefited them personally. In the Treaty of Dancing Rabbit Creek (1830), Chief Greenwood LeFlore of the Choctaw consented to have the Choctaw people removed from their ancestral lands and relocated to Indian Territory. Nonetheless, he was permitted to remain in Mississippi and to maintain ownership of his lands. Other tribal leaders received favorable land allocations and monetary payments in exchange for signing treaties that bound their nations to opposite fates.

From the Native American perspective, the authority of individuals or groups within the tribe to participate in negotiations varied. In several instances, the individuals recognized by the federal government as having the power to sign treaties were not the individuals who had the right to speak on behalf of the group. As a result, many communities have not recognized certain treaties that the United States has ratified and implemented. The federal government has sometimes declared individuals chiefs for the purpose of obtaining signatures, regardless of whether those individuals were recognized by the tribes as the official leaders. The United States continued this practice well into the 1960s by appointing tribal leaders for purposes of securing signatures on leases and other legal documents. In these instances, the federally appointed "chiefs" were not popularly elected by the tribal communities.

Some tribes had treaty councils or treaty delegations that were clearly sanctioned by the tribal people as spokespersons. The Chickasaw Nation, in the 1890s, issued official notarized certificates from the tribal government to individuals who were official delegates to Washington. These individuals had the right to negotiate on behalf of the people and the ability to enter into treaties and bind the people they represented. However, other indigenous nations did not believe that a small group of people had the authority to represent the full body of the tribe, and instead required the approval of general councils before decisions could be made. For instance, some treaties had provisions that affirmatively required subsequent amendments to the treaty to be submitted to a popular vote of the tribal people.

The Treaty as a Negotiation Process

In the early days of treaty making with Europeans and then with the Americans, the process of treaty negotiation was of more importance to the indigenous groups than the legal document that followed. The tribal representatives tended to place more importance on the discussions between the negotiators, the context that brought the parties together, the fellowship and interaction between the people involved, and the oral representations and positive assurances made by the parties.

Following the negotiations, the federal representatives would typically create a written document that constituted the agreement of the parties. Given the fact that few tribal representatives spoke English—the written language used in most treaties—it was the spirit of the negotiations that were important to tribal communities, not the piece of paper that followed. Tribal leaders who could not read or write English routinely placed their marks in the form of an "X" on the treaty document to register assent to the terms of the document. Promises and affirmations that were made during the negotiations were as binding, from the Native perspective, as the document that followed. Therefore, tribes that later sought compliance with oral promises of negotiations were disenchanted with the non-Natives' strict reliance on the words of the final, written version of the treaty.

The federal courts, when first reviewing the treaties in legal proceedings, tended to agree that the negotiations and historical context were important in addition to the treaty text. The federal courts adopted a set of interpretive rules, to be applied in treaty cases, that give accord to the Native perspective of treaty making. These interpretive rules, known as the canons of Indian treaty construction, require that treaties and agreements be liberally construed in favor of Native Americans. The canons require that the treaty be interpreted not literally but as the tribe would have understood the treaty at the time the agreement was made.

The Force and Effect of Treaties

Although the federal courts began developing canons for treaty interpretation in the 1830s, the canons are still applied today. In the U.S. Supreme Court case Minnesota v. Mille Lacs Band of Chippewa Indians (1999), various treaties with the Chippewa were interpreted to preserve the right of certain tribes to hunt, fish, and gather in lands that were otherwise ceded to the United States. Relying on the canons, the Court concluded that the tribal rights survived despite the fact that, in the treaty, the Chippewa agreed to "fully and entirely relinquish and convey to the United States, any and all right, title, and interest" to their lands. Strictly interpreted, this could be viewed as a full cession of all rights to the land. The Court, however, went beyond the written words and considered the larger context, giving weight to the tribe's perspective. The tribe would not have understood, at that time, that they were giving up their right to hunt and fish.

Many of the guarantees in treaties with Native Americans are promises that were intended in perpetuity. Despite the permanent language in the treaties that suggests the treaties will live on forever, the United States has failed to comply with most treaties, at least in part. Although the federal government's history of unilaterally breaking treaties is well documented, changing tribal circumstances and reversals of tribal diplomatic decisions should also be noted. Tribes, too, have abrogated treaties unilaterally. During the American Revolution, indigenous groups entered into treaties of alliance with both Great Britain and the colonies. During the American Civil War, groups with long histories of relations with the federal government entered into treaties with the Confederacy. Allegiances changed, and treaties were renegotiated.

The treaty-making process between the United States and Native American nations has a complex history that has evolved over the centuries and continues today in various forms. The most important legacy of these treaties is the legal framework they created. Modern tribal governments are the outgrowth of indigenous nations with centuries of experience in diplomacy both internationally and domestically.

Stacy Leeds

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Further Reading
Deloria, Vine, Jr. and Raymond J. DeMallie. Documents of American Indian Diplomacy. Vol. 1. Norman: University of Oklahoma Press, 1999; Pommersheim, Frank. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley: University of California Press, 1995; Prucha, Francis P. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994; Viola, Herman J. Diplomats in Buckskin: A History of Indian Delegations in Washington City. Norman: University of Oklahoma Press, 1995.