For centuries prior to European contact, tribes negotiated with other tribes agreements akin to the treaties they would later negotiate with European countries and ultimately with the United States. By the time Europeans arrived, tribes were already skilled in negotiating treaties and agreements for a variety of purposes. Tribes had formed military alliances and political confederations for centuries.
Tribes also had elaborate trade routes that required access to vast territories, including lands owned or controlled by other tribes. Tribes reached agreements that recognized boundaries between tribal lands and passage between those territories. All these negotiations predated European contact and influence. In fact, much of this treaty-making process was passed from Native groups to their European counterparts, who freely adopted Indian treaty-making procedures and diplomatic decorum in the negotiations that followed.
For instance, Native American treaty negotiations often involved long ceremonial meetings, during which past transgressions were set aside, friendships renewed, and gifts exchanged between the parties as a sign of goodwill. These formalities and ceremonial gestures preceded any discussion of new parameters or terms of agreement. In this regard, Native Americans influenced the manner in which future negotiations would take place, and federal negotiators embraced many of these concepts.
The influence of European and subsequent U.S. treaty-making traditions also altered the way Native groups negotiated. There was a shift away from reliance on oral agreements toward a focus on written documents. Prior to European contact, the treaty negotiations of tribes were committed to memory, with the entire discussion constituting the binding agreement of the parties. The non-Natives' insistence on memorializing agreements in writing altered the treaty-making process and, over time, changed the way tribes entered into the negotiating process. The result was a shift in focus: today, many Native Americans might know the words of the treaty document but not the context in which the negotiations arose.
Natives and non-Natives alike initially approached the early treaty negotiations with little or no knowledge of each other's traditions or beliefs. The language barrier routinely would have made fluid communications nearly impossible, yet agreements were made. In coming together, each side influenced the treaty process of the other sovereign, and a unique system of negotiations emerged that included elements of both the Native American and the European traditions.
The first treaty between America and an indigenous nation was completed during the Revolutionary War, the Treaty of Fort Pitt (1778). The Lenápe (also known as Delaware) made a formal alliance with the American revolutionaries, and the tribe permitted colonial troops free movement across their territory. In exchange, the Americans agreed to build a fort inside the Delaware nation to protect the community when soldiers were elsewhere engaged. Beyond its historical significance, this treaty was important because it established that tribes were sovereign entities with the power of diplomacy. It also established, in a legal context, that tribes were property owners with full dominion over territory, including the right to exclude others from their territory.
The Cherokee Nation, like the Osage, the Muscogee Creek, the Seminole, and other nations, entered into treaties of alliance with the Confederate States in 1861. When the Civil War was over, the United States reestablished these ties. These post–Civil War treaties were among the last official treaties between Native American nations and the United States. The post–Civil War treaty with the Cherokee is unique because it precipitates additional treaties between tribes on the request of the United States. Rather than using force to require the Cherokee Nation to accept the relocation of other Native groups, the United States acknowledged that the tribes would work out the terms of relocation and new citizenship in an intertribal treaty. This illustrates how, even toward the end of formal treaty making with the United States, tribes were viewed as sovereigns who negotiated with each other and with the United States as a means of diplomacy.
The United States officially ended treaty making between the federal government and tribal governments in 1871 (25 U.S.C. § 71). The act of 1871 did not end the recognition of Native American treaties, however; it merely halted the treaty-making process. The United States continued to make formal agreements, although they were not considered treaties, with tribes well into the 20th century. One of the most common subjects of these agreements was the allotment of tribal lands. The United States did not stop making treaties; it simply relabeled the process and extended ratification rights to both houses of Congress rather than to the Senate alone.
During the allotment period, the tribes did not have the same political and military strength they once had had. By this time, tribes had typically been relocated to reservations or to diminished land bases. Even though very few tribes were militarily conquered by the United States, in previous treaties many tribes had agreed to become protectorates of the United States and had thereby abandoned any effort to maintain their own troops.
With no military threat and with increased economic dependency of tribes on the federal government, the United States continued to gain political power over the tribes. With increased political power, the United States began to interfere with matters that had previously been internal to the tribe, including how the tribes governed themselves. Increased federal involvement in internal tribal matters quickly led to an effort by the federal government to change the land tenure systems inside Indian Country. As such, the allotment agreements were heavily coerced by the federal government, and the tribes were powerless to demand many concessions.
Native American treaty making continues throughout Indian Country today. Many tribes continue to make agreements with state and local municipalities and with other tribes. A foundational principle of federal Indian law has been the role of the federal government in Indian affairs, to the exclusion of the states. Early cases and federal statutes preclude states from negotiating treaties with tribal governments. However, when formal federal treaty making came to an end, states and local governments increased their willingness to negotiate with tribes, realizing that treaties and agreements are mutually beneficial.
Many of the guarantees in these treaties are promises that were intended in perpetuity. They are typically not limited by time. 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. History tells us that the United States always breaks treaties but that Native Americans believed that a treaty was sacred and could not be broken. This story is far too simplistic. Context and circumstances change for tribes just as they change for sovereigns the world over. And, 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.
As previously noted, some tribes entered into treaties with competing factions in order to secure a favorable stance with the victor of a foreign war. During the American Revolution, tribes entered into treaties of alliance with both Great Britain and the colonies. Allegiances change and treaties are renegotiated. During the American Civil War, tribes with long histories of relations with the federal government entered into treaties with the Confederacy.
The treaty-making process between the United States and Native nations has evolved over the centuries and continues today in various forms. The most important legacy of these treaties is the legal framework they created. Native American tribes are governments that have negotiated with other sovereigns in an array of political contexts. Modern tribal governments are the outgrowth of indigenous nations with centuries of experience in diplomacy both internationally and domestically.
Prucha, Francis Paul. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994; Debo, Angie. A History of the Indians of the United States. Norman: University of Oklahoma Press, 1970; Deloria, Vine, Jr., and Raymond J. DeMallie. Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979, vol. 1. Norman: University of Oklahoma Press, 1999; Foreman, Grant. The Five Civilized Tribes. Norman: University of Oklahoma Press, 1934; Kappler, Charles J., ed. Indian Treaties 1778–1883. New York: Interland Press, 1975.