Focus on Treaties for Native American Heritage Month
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Treaty Making

"Peace and Friendship" is the most commonly used phrase in the language of Native American treaties. The intent of the United States as a young country was to persuade indigenous communities to deal only with the United States. Many things were unsettled following the American Revolution, and the tribes found themselves in the middle of it. In the early years of U.S.-Native relations, the tribes also had common interest with the British, the French, and the Dutch.

Indian agents and other government officials in the United States negotiated more than 400 treaties and agreements with Native Americans; treaty talks occurred for more than 100 years. Interestingly, Native and non-Native leaders met at various sites that often had been the meeting places for previous trading and council meetings. Beginning in 1778 with the Lenápe (also known as the Delaware), when the United States negotiated its first successful treaty with an indigenous nation and ratified it, a historic precedent was set, one that has made Native Americans a unique minority in their own country. For the record, Native tribes in what is now the United States also made treaties with the British, the French, the Confederate states during the Civil War, and with other tribes.

The mid-19th century represented the zenith of treaty making; during the next 20 years, the practice sharply declined. A rider attached to a congressional appropriations act in 1871 ended the Indian treaty-making business in the United States, although agreements were negotiated until 1917. The act of 1871 did not end the recognition of Indian treaties, however; it merely halted the treaty-making process.

Treaties between Native groups and the United States are binding agreements. For Native peoples, each step of the negotiation was important, not just the resulting words on a piece of paper. Indian agents, military officials, and officials of the Indian Office met with Native leaders to begin negotiations, which usually began with a council held at a previously agreed-upon site. To Native people, the chosen site was important, and the talk itself was just as significant as the resulting treaty or agreement.

The first meeting, or council, likely made or broke the tone of the talks. The council was a fundamental concept among the indigenous nations, and tribal protocols varied from tribe to tribe. Unsure of how to approach the various tribes, federal officials depended upon local whites, guides, and traders to introduce them to the tribes in their areas. Familiar with the ways of the tribe, these individuals advised officials how to approach Native leaders.

The language barrier between the two sides caused great skills in diplomacy to be exercised. During the height of contact between Native Americans and European Americans in the 17th and 18th centuries, more than 250 indigenous languages were spoken. The role of interpreters, both Native and non-Native, became crucial to treaty negotiations. The varying protocols among tribes for holding councils compelled American officials to learn about tribal leaders before talks of a serious nature began. Cultural differences added to language barriers as problems arose, often intensifying the clashing views over land. One perceived land and what it meant economically, and the other understood the earth philosophically and celebrated it with ceremonies.

Gift giving played a crucial role in the early contact and negotiations between leaders. Federal officials typically brought gifts of inexpensive items such as mirrors, metalwork, and beads to get the Natives into a peaceful frame of mind that would lead to the discussion of bigger issues, such as land cessions. At least 47 treaties contained provisions for giving gifts.

"Touching the pen" became a common occurrence during Indian treaty making. Native leaders were unable to write their names because they did not know the English language, and therefore white officials asked Native leaders to "make their mark"—which was of little importance to Native Americans, who believed that the spoken word was superior to any words on a piece of paper, which might be blown away by the wind or destroyed. Several treaty councils witnessed impressive oratory articulated by tribal leaders. The majority of the treaties verify the marks made by the tribal leaders. In other situations, the leaders refused to hold the white man's writing instrument, and the federal officials asked the Native leaders to touch the pen after the names were written by the official in charge.

The most important concern for Native peoples in treaty negotiations was their sovereignty. Sovereignty is an important issue of concern resulting from the U.S.-Native agreements. The signing of a treaty creates binding responsibilities between both sides and includes the respectful recognition of each for the other. Theoretically, the relationship between the two sides is one of a sovereign forming an agreement with another sovereign—that is, government-to-government in a lateral relationship of similar status. The status is one of international law and based on each party to the treaty having faith in the agreement and recognizing each other as being sovereign.

Trust is a meaningful legal responsibility between two nations and their people, and treaties established this reciprocal relationship. Both sides of a treaty agreement must abide by the provisions and must continue to fulfill the responsibilities outlined in the document. That trust responsibility continues into this century, in the hands of the assistant secretary of the Department of the Interior, who supervises the Bureau of Indian Affairs (BIA) for all tribes in the United States.

Treaties were a systematic procedure for dealing with tribes. For example, treaty negotiations, talks, or councils were the first step in this system of agreements. During these important gatherings, significant indigenous individuals were recognized and acknowledged so the representatives of the United States would know who they were dealing with. The federal government operated on the political philosophy that a head of state represented a nation, thus a Native nation must have one significant leader or chief. This was not the case with many tribes, such as the Muscogee Creek, the Ojibwa, and others, who had leaders for each town or village and settlements scattered over a vast region of the country.

Discussion of the treaty's provisions was another critical phase of Indian treaty making. Both sides met with an agenda of needs, according to their thinking, and they lobbied to obtain agreement from the other side. Some acute Native leaders saw that education was an important part of the future of their people and wanted educational assistance in the form of teachers. Common provisions included goods and annuities over a number of years and perhaps blacksmiths. Most of all, large sums of money were paid to the tribes for their lands.

The next phase consisted of the results of treaties—some of which caused important changes, such as the exchange of enormous tracts of land for perpetual gifts, or changes in fishing or hunting rights on ceded lands. The treaties led to a new era in Native American-U.S relations and actually marked the decline of the strength of indigenous nations. After 1800, the federal government almost always had the leverage in treaty talks.

Strategies of treaty-making involve several motives, all of which resulted in the decline of tribal nations. These strategies involved introducing the idea of one nation, one leader; setting boundaries; manipulating leadership; making chiefs; courting treaty signers; and giving gifts to influence tribes and their leaders. Such actions almost always were directed toward Native American men, not toward women (although, in many tribes, women held the authority to select their leaders).

Peace was the main objective in the early U.S. treaties until about 1850. The federal government found it much easier to make peace with the nations than to fight them, which proved costly, especially as great effort was needed just to find them. The United States ratified 374 treaties but fought more than 1,600 wars, battles, and skirmishes against indigenous groups.

The establishment of boundaries for tribes was another goal for government officials as they treated with indigenous leaders. Many tribes hunted over vast territories; government officials were able to contain tribes within certain areas, and they reminded leaders of the boundaries established in the agreements. Officials introduced Native peoples to the idea of land ownership and individual ownership. This led to the surveying of the tribal land for division into individual 80-acre allotments. In this way, tribal lands were reduced in size.

Control of tribal movements was the final strategy and result of the treaties. With treaties in place and with military power greater than that of the tribes, the United States could enforce control over the weakened Native American nations. Once the leaders were undermined and control exerted over them, Indian superintendents controlled the indigenous population and conditions on the almost 200 reservations throughout Indian Country.

Officially, treaties had to be ratified by the U.S. Congress and signed by the president of the United States. Congressional ratification was most active during the 1800s, as federal officials met with Native leaders at an increasing rate. Treaty making fell into a pattern: More and more treaties were negotiated with eastern tribes, who were thus forced to keep moving westward; the Lenápe, for example, were forced to remove at least nine times.

Unratified treaties were agreements not confirmed by the U.S. Congress. Naturally, many agreements were submitted to Congress; most submissions were ratified, and some had their provisions amended. It is estimated that between 47 and 87 treaties were unratified. Most Native leaders did not understand the ratification process and believed that all the agreements they made were official.

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 Indian treaties is the legal framework they created. Modern Native American tribal governments are the outgrowth of indigenous nations with centuries of experience in diplomacy both internationally and domestically.

Donald L. Fixico

Further Reading
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; Clark, Blue. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press, 1999.

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