Focus on Treaties for Native American Heritage Month
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Reconstruction Treaties, 1865–1868

The years between 1865 and 1868 produced a very long list of Native American treaties with the United States, some ratified, some simply set aside until more comprehensive agreements could be made. The Five Civilized Tribes agreed to Reconstruction treaties that not only ceded territory but also gave up land for the resettlement of Native nations from Kansas, Nebraska, and Missouri. The Cherokee, Choctaw, Chickasaw, Creek, and Seminole agreed to abolish slavery and admit the freed slaves to citizen status within their respective nations. The Reconstruction Treaties with the Great Plains tribes signed at Medicine Lodge and Fort Laramie aimed not only at securing peace but also at confining Native Americans to reservations.

The Treaty with the Cherokee (1866) was perhaps the most comprehensive of the several reconstruction treaties. It first contained a provision declaring the Confederate treaty of 1861 null and void, even though the Cherokee had already repudiated it in 1863. Notwithstanding this repudiation, the United States argued that the previously existing Cherokee treaties were nevertheless insufficient. A portion of the Cherokee Nation was set aside for former slaves and for free blacks who had resided in the Cherokee prior to the Civil War, who individually could take 160-acre plots should they desire to move there within a span of two years. The residents of this reserve-within-a-reserve were enabled to elect their own local officers and judges and to have representation in the Cherokee national government. A U.S. court was to be established in the Indian Territory and was to have jurisdiction over all matters civil and criminal involving whites and blacks. The Cherokee court system retained jurisdiction in Cherokee cases only. The Cherokee were also required to take a census of the nation and to participate in an Indian Territory-wide general council in order to regulate intercourse between the indigenous nations and with the "colonies of freemen resident in said Territory."

The federal government obtained the agreement from the Cherokee to resettle "civilized Indians" in the Cherokee Nation and admit them as citizens (a Delaware and a Shawnee band eventually were so settled). More Cherokee land was to be ceded for the future resettlement of several "friendly" Native nations. The idea of resettling "friendly" Native nations in the Indian Territory 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 numerous other Native nations that had surrendered their lands in Iowa, Minnesota, Kansas, Texas, Nebraska, the Dakotas, and as far away as New York and Oregon.

Most of the unratified treaties of 1865, 1866, and 1867 were measures under which Native nations surrendered title to vast territories in the West. This round of treaty making was also an effort on the part of the United States to restore its claim to authority over the relations with Native nations. All the Native nations were doubtless aware of the terrible internecine struggle the Americans had just fought and were probably willing to deal with the winner in order to restore orderly relationships with the whites. These treaties, especially those made with the Paiute, Shoshone, Crow, several bands of the Apache, the Arikara, Mandan and Hidatsa, the Assiniboine, the Brule and Oglala bands of Lakota, and the Bannock, were very likely either not even submitted for ratification or had been made by unauthorized military personnel seeking an immediate end to hostilities or by those seeking to earn a measure of fortune or fame for negotiating the surrender of large tracts of Native lands.

Several agreements in the period also went unratified for the same reasons, because they were superseded by subsequent negotiations at the level of formal treaties, or because they were simply nullified by certain events. War was the event that certainly voided most of the agreements and treaties, ratified or not, with several Native nations of the Great Plains and the Southwest. The Apache were embroiled in a continuous war of attrition for their mineral-rich lands in Arizona and New Mexico territories that ultimately would last until the 1880s. The numerous agreements and ratified treaties made with the individual bands of the Lakota Nation, the Yanktonai, the northern and southern branches of the Cheyenne and Arapaho Nations, the Kiowa, Plains Apache, and Comanche in 1865 were but interludes of diplomacy in a lengthy conflict that began with the massacre at Sand Creek and engulfed all of the peoples of the Great Plains.

Because of the continuing violence, Congress created the United States Indian Peace Commission on June 20, 1867. The "Great Peace Commission," headed by Commissioner of Indian Affairs Nathaniel G. Taylor and including famous Civil War generals William Tecumseh Sherman and Alfred Terry, negotiated two of the most significant treaties on the Great Plains: the treaties of Medicine Lodge and the Treaty of Fort Laramie (1868). Neither treaty ended the conflict completely. Their very existence, however, ultimately led to the end of formal treaty making altogether. In a very real sense, the Native nations involved in these treaties negotiated from a position of relative strength, something that the United States was not ready to countenance.

Three treaties were negotiated at Medicine Lodge. The first was the Treaty with the Kiowa and Comanche (1867). Basically, the price of peace was confinement to a relatively large reservation in southwestern Indian Territory and the withdrawal of opposition to the construction of roads and rail lines into Colorado and New Mexico. The issuance of farming implements, the services of a blacksmith and a physician, and the establishment of reservations schools were promised. Two important provisions in the treaty would eventually become causes for renewed conflicts, one resulting in open warfare and the second in a famous court case. The second treaty of Medicine Lodge was the Treaty with the Kiowa, Comanche, and Apache (1867). The Plains Apache agreed to join the Kiowa and Comanche on the reservation and to abide by the same provisions of their comprehensive convention. The third treaty of Medicine Lodge, the Treaty with the Cheyenne and Arapaho (1867), enjoined the southern Cheyenne and Arapaho to abide by nearly the same provisions as the Kiowa and Comanche but confined them to an area immediately to the north of the Kiowa-Comanche-Apache Reservations.

War on the northern plains centered on a Lakota-led campaign against the illegally occupied military forts along the Bozeman trail in Montana. Like the Native nations of the southern plains, the Lakota and Cheyenne had disrupted the building of the railroad through Nebraska. When the whites began to invade the Powder River country and erect the forts, however, the alliance launched an all-out and decisive campaign. The army's withdrawal prompted the call to diplomacy and the peace conference at Fort Laramie in 1868.

Again, three treaties were signed. The first was with the Lakota bands, the Yanktonai, the Santee, and the Arapaho. The Great Peace Commission's treaties were remarkably formulaic, worded nearly the same as those signed at Medicine Lodge except for the detailed boundaries of the new Great Sioux Nation in the Dakotas. The Crow Nation, although an enemy of the Lakota-led alliance, signed the Treaty with the Crow (1868), also concluded at Fort Laramie, which established their present reservation in Montana. The Northern Arapaho and Cheyenne penned a separate treaty, the Treaty with the Cheyenne and Arapaho (1868), in which they agreed to relinquish all land claims outside the southern Cheyenne-Arapaho Reservation in Indian Territory, and lands were set aside for them in the Lakota Reservations.

Four more ratified treaties were signed in 1868, with the Ute, Cherokee, Navajo, Shoshone-Bannock, and Nez Percé nations. In effect, they were the last treaties of their kind. In 1871, the House of Representatives added a proviso to the Indian Appropriations Act (1871) that ended the practice of treaty making with Native nations.

Tom Holm

Further Reading
Prucha, Francis P. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994; Brown, Dee.Bury My Heart at Wounded Knee: An Indian History of the American West. New York, 1970; Cohen, Felix S. Handbook of Federal Indian Law. Washington, DC: Interior Department, 1942; Jones, Douglas C. The Treaty of Medicine Lodge: The Story of the Great Council as Told by Eyewitnesses. Norman: University of Oklahoma Press, 1966.

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