Focus on Treaties for Native American Heritage Month
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Treaty Diplomacy

One of two ways European nations could legally gain title to land from Native American nations was by treaty, a consensual agreement of willing parties. The other was through "just" war. Treaties with indigenous groups often were signed as an alternative to a war of attrition that would prove even more devastating to Native Americans than the cession of most of their land bases.

Provisions in the treaties negotiated with Native American bands and nations varied widely, but most of them contained similar elements: a guarantee that both sides would keep the peace, a marking of boundaries between Native and non-Native land, a statement that the signatory Native peoples were placing themselves under the "protection" of the United States, and definition of Native fishing and hunting rights (often applied to ceded land). Many treaties also regulated travel by non-Natives on Indian land, as well as containing provisions to punish non-Natives who committed crimes on Indian land and Native Americans who committed offenses against non-Natives.

The U.S. Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979) characterized a treaty between the federal government and a Native American government as "essentially a contract between two sovereign nations." The treaties have been generally held to reserve to Native American governments powers not relinquished to the United States, just as the Tenth Amendment reserves to the states powers not delegated to the U.S. government by the Constitution. According to legal scholars these agreements between Native American governments and the federal government are understood in international law that annex tribes to the federal system in a status parallel to, but not identical with, that of the states.

The U.S. Constitution (Article VI, Section 2) holds that "all Treaties made . . . shall be the Supreme Law of the Land." On that basis, the United States entered into more than 800 treaties with Native Americans between 1778 and 1871, when Congress halted formal treaty making. Only 374 of these treaties were ratified by the Senate. Even after 1871, commissions of the executive branch continued to sign treaties with Native American governments until 1914, when the last agreement of this type was signed with the Ute Mountain Ute. These instruments were called "agreements," not "treaties," when presented to Congress.

Treaties have been the most frequent sources of litigation in Indian law. Treaties with Native American nations are unique in U.S. law, for they set aside territory within the United States for self-government; although these territories are subject to federal supervision, they are controlled by sovereigns of those territories.

Although the term "treaty" carries connotations of diplomatic solemnity and equality, many of the treaties were negotiated under less than agreeable conditions, especially after 1800. Before 1800, the balance of power between immigrant Europeans and Native Americans acted as a check on abuses, although even during the early years of the British colonies and the United States, treaty records indicate that negotiations were liberally lubricated with liquor. Treaties were always written in English and presented to Native people who did not understand the written language or the European protocol used to negotiate them.

The very concepts of land ownership and centralized government regulation often were foreign to Native American leaders who negotiated treaties. Native Americans very often did not completely understand what they were signing, and even when they did, the Senate sometimes unilaterally changed treaty provisions before ratification. Treaties often were signed with Native American "leaders" who had been recruited by treaty commissioners who failed to realize that the treaties had little or no support among the people of the nation being represented as the contracting party. During negotiations for the Treaty of Fort Laramie (1851), sometimes called the Horse Creek Treaty, the U.S. representatives insisted that the Sioux designate one leader to speak for all of them. The Sioux refused, after which the U.S. negotiators designated Conquering Bear the Sioux leader without the consent of the people he was supposed to be leading. The problem was compounded three years later when Conquering Bear was killed by U.S. Army troops during the Grattan fight near Fort Laramie. The Sioux had a great deal of trouble comprehending why the army had killed the chief who had earlier been handpicked as their supposed "leader."

In some cases, errors of large magnitude were made during treaty negotiations. In 1868, for example, the Fort Laramie Treaty granted the Sioux land in northern present-day Nebraska that had long been occupied by the Ponca. The Sioux, traditional enemies of the Ponca, fully approved of the U.S. Army's intervention to force the Ponca off their land and into exile in Indian Territory, later called Oklahoma. This mistake in treaty negotiation gave rise to a long march homeward by Standing Bear and other Ponca that in turn created the conditions that caused a landmark case to be brought in Omaha during 1879, under which Standing Bear and his party were held to be human beings under U.S. law and able to legally return to their homeland. After several decades of bureaucratic battling, the Ponca finally reacquired some of the land taken from them by the error in the Fort Laramie treaty.

Federal Judge George Boldt, in United States v. Washington (1974), pointed out that treaty negotiations in the Pacific Northwest often were carried out in three languages—English, Chinook (a trade jargon with limited vocabulary), and a Native language. The use of Chinook severely limited both parties' ability to communicate complex concepts. Because of the disadvantages at which treaty making often placed Native Americans, the Supreme Court has held that treaties should be construed as the Native signatories would have understood them. Treaties, according to Supreme Court rules of construction, are also to be interpreted to accomplish their protective purposes towards Native American nations.

Bruce E. Johansen

Further Reading
Barsh, Russel, and James Henderson. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press, 1980; Canby, William C., Jr. American Indian Law in a Nutshell. St. Paul, MN: West Publishing, 1981; Deloria, Vine, Jr. Behind the Trail of Broken Treaties: An Indian Declaration of Independence. 1974. Austin: University of Texas Press, 1985; Prucha, Francis Paul. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994; Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press, 1987.

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