THE DEATH AND REBIRTH OF INDIAN TREATIES
After the Treaty of Medicine Lodge, the Peace Commissioners returned to St. Louis, and they then headed north again to resume talks with the Sioux. They made a treaty with the Crows in November and had talks with the Brulé chief, Spotted Tail, but full peace with the Sioux had to be delayed until the following spring. In December 1867 the commission convened in Washington, and in January the commissioners submitted a report to the president. In the spring they (minus Senator Henderson who remained in Washington for President Johnson’s impeachment trial) returned to Fort Laramie for another round of treaty negotiations. There, Harney, Sanborn, Tappan, Terry, and Augur negotiated a treaty with the several bands of Sioux, Northern Cheyennes, and Arapahos, bringing an end to the war that the Oglala chief Red Cloud and his allies had waged to close the Bozeman Trail. The Treaty at Fort Laramie contained many of the same provisions as the treaty made at Medicine Lodge. The Indians agreed to permit the building of railroads, move on to a reservation, settle down, farm, and send their children to school. The government allowed them to continue hunting buffalo in certain territory so long as there were sufficient buffalo “to justify the chase”; promised to feed, clothe, and educate them; and guaranteed that no additional lands would be taken without consent of three-quarters of the adult male population. The Laramie treaty set aside most of what is now South Dakota as “the Great Sioux Reservation” and guaranteed the Sioux possession of the Black Hills, the sacred center of their world.1
Over a six-month period, 159 chiefs from ten Sioux bands “touched the pen” to the treaty. The commissioners left in May without meeting Red Cloud. Only after the forts on the Bozeman Trail were abandoned and burned did Red Cloud ride into Fort Laramie and sign the treaty with the post commander in November. Red Cloud later denied agreeing to the terms the commissioners recorded in the official document and said he had signed his name merely to make peace. In a speech to the Cooper Union in New York two years later, he said, “In 1868, men came out and brought papers. We could not read them and they did not tell us truly what was in them. We thought the treaty was to remove the forts and for us to cease from fighting.” As the historian Jeffrey Ostler notes, the terms of the treaty “were complicated and ambiguous to begin with and the commissioners did a poor job of explaining them. In fact, the record strongly indicates that the commissioners generally avoided saying things that might raise Lakota suspicions and deter them from signing.”2 The Bozeman Trail had been the sticking point in the negotiations but in 1868 the railroad moved beyond the contested area, opening up a better access route to Montana. The Bozeman Trail was no longer worth fighting for. “It was the single episode in United States history where an Indian treaty was signed on Indian terms, but in truth it was not much of a victory. It was simply that the railroad made the battle obsolete.”3 Nevertheless, having signed the treaty, Red Cloud kept the peace. The United States did not.
While Harney, Sanborn, and Terry remained, collecting signatures from various Sioux bands, Sherman and Tappan headed south to make a treaty in June with the Navajos. After four years’ incarceration at Bosque Redondo in New Mexico, an expensive failure the government was ready to terminate, the Navajos were allowed to return to their homeland in Arizona and were provided with livestock to rebuild their pastoral economy. The Navajos agreed to send their children to American schools and to permit railroad construction through their territory.4 Sherman and Tappan rejoined the other members of the commission in time to make a treaty with the Bannocks and Shoshonis at Fort Bridger in western Wyoming a month later.5
In August, Commissioner Taylor signed the last formal Indian treaty ratified by the US Senate. In 1863 the Nez Perce chief Lawyer, who had been so quick to approve the Treaty of Walla Walla with Isaac Stevens in 1855, and fifty-one other chiefs signed another treaty in the Lapwai Valley. Lawyer began the negotiations by reading aloud some of Stevens’s statements, which the chief had written down word for word in a small pocket notebook, but he then ceded almost 90 percent of the reservation lands established by the Walla Walla treaty, almost seven million acres for about 8 cents an acre. Most of the ceded land belonged to other Nez Perce bands. Dealing with compliant chiefs had long been standard practice in American Indian diplomacy. Lawyer viewed himself as head chief and the government chose to deal with him as such and to regard the treaty as binding on all Nez Perces. Now, in 1868, Lawyer and three chiefs (one of whom died) traveled to Washington, D.C., and signed another treaty making “certain amendments” to the 1863 treaty. Other Nez Perces who were not present at what Yellow Wolf called the “lie-talk council” in 1863 refused to be bound by the “land-stealing treaty.” “It was these Christian Nez Perces who made with the Government a thief treaty,” said Yellow Wolf, and “sold what did not belong to them.” Confronted with American assertions that his people had sold their coveted Wallowa Valley homeland and that they must move to the new reservation, Chief Joseph, leader of one of the “nontreaty bands,” later responded:
Suppose a white man should come to me and say, “Joseph, I like your horses, and I want to buy them.” I say to him, “No, my horses suit me, I will not sell them.” Then he goes to my neighbor, and says to him: “Joseph has some good horses. I want to buy them, but he refuses to sell.” My neighbor answers, “Pay me the money, and I will sell you Joseph’s horses.” The white man returns to me and says, “Joseph, I have bought your horses, and you must let me have them.” If we sold our lands to the Government, this is the way they were bought.”6
Joseph would have understood the kind of horse-trading that had gone on at Fort Stanwix in 1768, New Echota in 1835, and scores of other locations. It was, in many ways, a fitting final comment on the treaty making that had transferred so many Indian homelands into American hands. The Nez Perces, who had befriended Lewis and Clark in 1805, had asked for Christianity in 1831, and had held steadfastly to peace, were soon at war with the United States. In the last great Indian war, eight hundred Nez Perce people and their livestock tried to escape to Canada in an epic and ultimately tragic 1,500-mile odyssey.7 For ninety years US Indian policy had seen the treaty system as a “fair and honorable” way to acquire the continent from its original inhabitants but it had been reduced, finally, to American armies harrying hungry women, children, and old people through the snow and rounding them up for exile to Indian Territory.
By then the treaty system was dead. The Medicine Lodge and Fort Laramie treaties helped to kill it. The signs were there even before the Peace Commission disbanded, even before the first signatures on the Medicine Lodge treaty were dry. Senator E. G. Ross of Kansas fired off a letter to the Lawrence Tribune as soon as he returned from the Medicine Lodge treaty grounds. Briefly reviewing the terms of the treaty, he urged congressional delegates throughout the West to get behind the movement “for the speedy abandonment of the present absurd Indian treaty policy” and to incorporate the Indians into American society, subject to US laws. “Our own self-respect forbids that we should continue to recognize a few squalid nomads as independent nations, and the sooner the Government places them in their proper relation to itself and the community, the better it will be for all concerned.” Doing so would require patience and careful consideration, Ross allowed: “The treaty system was adopted when the Indians were the stronger party, and having grown into a settled feature of our Indian jurisprudence, it cannot be hastily abandoned without encountering grave legal obstacles.” Nevertheless, “the idea of a nation of thirty millions of people constantly warring with, or suffering itself to be constantly harassed by a handful of miserable savages, is even more discreditable than that of continuing the petty, mock sovereignties into which they are divided. We can never have permanent peace so long as their present absurd status is continued.”8
In October 1868 the members of the Peace Commission assembled for a two-day meeting at Tremont House in Chicago. The Republican nominee for president, Ulysses S. Grant, attended as an observer. Senator Henderson was still absent on impeachment business. After their long travels, hard work, and frequent frustrations, the commissioners were tired and testy. It was clear they had not brought peace to the Plains—the Treaty of Medicine Lodge was already a shambles and Red Cloud had yet to sign the Treaty of Fort Laramie. It was a time for review and rethinking. The commission generals—Sherman, Terry, Harney, and Augur—pushed their agenda over the opposition of Taylor and Tappan. General Terry proposed recommending to Congress that the Bureau of Indian Affairs be transferred back to the War Department. The army blamed civilian control for the inefficiency and corruption that plagued the system, produced hunger and suffering on the reservations, and drove Indians to war. Military control would instill more professionalism and humanity in the conduct of Indian affairs. Terry’s resolution prompted lengthy debate. Commissioner Taylor objected that such a move and placing troops in Indian country would promote war, not peace, and that the record of wars against the Indians showed that the costs and losses incurred by military action were huge, relative to the few Indians killed—unless, of course, Indians were surprised, surrounded, and butchered in large numbers as at Sand Creek. “As a rule, with rare exceptions, if any, Indian tribes never break the peace without powerful provocation or actual wrong perpetrated against them first,” he said. “Respect their wishes, fulfill our treaty stipulations promptly and faithfully, keep them well fed, and there will be no need of armies among them. But violate our pledges; postpone, neglect, or refuse the fulfillment of our treaty engagements with them; permit them to get hungry and half starved, and the presence of armies will not restrain them from war.”9
The BIA remained in the Department of Interior. But another resolution offered by General Terry was unanimously adopted:
That in the opinion of this Commission, the time has come when the Government should cease to recognize the Indian tribes as “domestic dependent nations” except so far as it may be required to recognize them as such by existing treaties and by treaties made but not yet ratified; that hereafter all Indians should be considered and held to be individually subject to the laws of the United States, except where and while it is otherwise provided in said treaties: and that they should be entitled to the same protection from said laws as other persons owing allegiance to the Government enjoy.10
The treaty system came under increasing attack. Henry B. Whipple, the Episcopal Bishop of Minnesota and known as a champion of Indian rights and a critic of federal Indian policy, was scathing in his indictment of the treaty-making process. It was, he wrote in the North American Review in 1864, “one of those blunders which is worse than a crime” to “treat as an independent nation a people whom we will not permit to exercise one single element of that sovereign power which is necessary to a nation’s existence.” Ostensibly negotiated between a Christian nation and the Indians for the avowed purpose of acquiring certain lands at a fair price and advancing civilization, treaties were “usually conceived and executed in fraud” and the beneficiaries were the Indian agents, politicians, and traders whose debts were settled. Whipple continued his condemnation in the New York Times in October 1868: “We recognize them as nations; we pledge them our faith; we enter on solemn treaties, and these treaties are ratified as with all foreign Powers, by the highest authority in the nation. You know—every man who ever looked into our Indian affairs knows—it is a shameless lie.”11 Colonel Richard Dodge agreed, calling the treaty system “absurd.” “We ‘covenant and agree’ to keep white men out of the limits of the new reservation, though we well know that a government constituted as ours, resting on a popular basis, and with a tide of immigration unparalleled in modern times, can by no possibility keep the faith of any such treaty.” Dodge denounced the negligence and corruption that skimmed off the annuities pledged to Indians on the reservations.12 Others, in Congress, in the press, on the frontiers, and in the army, were outraged that the treaties seemed to protect and feed Indians during the winter months, only for them to resume their raids come spring. Less than a month before he died at the Washita, Major Joel Elliott complained that the peace commissioners were “making heroes and saints” of Indians with blood on their hands. “Our whole system of treaties with Indians is a downright farce,” wrote another soldier.13
The Peace Commission failed to establish lasting peace, incurred excessive costs, and appeared to ignore or undermine the responsibilities of the House of Representatives in Indian affairs. (The reservation lands selected were supposed to be submitted for congressional approval but never were.) The contents and costs of the treaties attracted criticism. The House resented appropriating funds to fulfill treaty obligations that the Senate had ratified. It balked at the vast increase in expenditures required by the treaties of 1867–68, and it renewed its attack on Senate control of the Indian treaty system. Debate continued during the commission’s lifetime about whether the president and Senate or the House of Representatives had the constitutional authority to conduct Indian treaties and whether Indian affairs should be under the jurisdiction of the Interior Department or the War Department. Military and civilian authorities wrangled over who should do what and how and about who was responsible for the sorry state of Indian affairs. But what killed the treaty system was a consensus in Congress that “the documents perpetuated an outdated, unrealistic, and to some unfair relationship between the United States and the Indian peoples.” Even Grant’s commissioner of Indian affairs, Ely S. Parker, a Seneca, advocated abandoning the treaty system. “A treaty,” wrote Parker, “involves the idea of a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligations incurred.” The tribes lacked organized governments capable of enforcing compliance with their treaty commitments and could not be considered sovereign nations on an equal basis with the United States, he said. Treaty making was a “cruel farce” that had given Indians a false impression of national independence.14 The issue came to a head with the Indian appropriations bill in March 1871 to which was attached a rider “that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.” Though some members of Congress expressed doubts about the constitutionality of the rider, the treaty system was effectively ended.15
That May a delegation of chiefs that included Little Raven and Powder Face of the Arapahos and Stone Calf and Little Robe of the Cheyennes, with John Simpson Smith and Philip McCusker as interpreters, arrived in Washington, D.C. They met President Grant. They traveled home via New York City, Boston, Philadelphia, and Chicago. In Boston, they toured Harvard College. At a large assembly in the city, Stone Calf and Little Raven gave long speeches. Stone Calf declared the government had not kept the promises made at Medicine Lodge, and he appealed in vain for an end to railroad construction across Cheyenne country. In New York they visited the Central Park Zoo (where said Little Raven, “My eyes saw more than they could carry”) and sat for a photograph (figure C.1). It was the last known photograph of Smith. He died a month later, back in Indian Territory with his Cheyenne family.16 It was just three months after the appropriations bill ended the treaty-making era. Perhaps it was a fitting time for the sixty-one-year-old veteran of numerous treaty councils and several delegations to Washington (and a massacre) to depart the scene.
The end of treaty making did not, of course, end the transfer of Indian lands into American hands. The United States continued to acquire land through agreements, executive orders, “conventions,” and other treaty substitutes.17 Unlike treaties that were ratified by the Senate alone, agreements required approval by both houses of Congress. Congress continued to authorize commissioners to go to reservations and obtain land cessions, and it then ratified the agreements by incorporating the texts into federal statutes. Statutes, rather than treaties, came to define Indian rights.18 It marked a critical shift in US-Indian relations: after more than a century of nation-to-nation dealings with the tribes, the United States now treated them more like domestic entities, bringing them more firmly into the American political system and more directly under colonial administration. Lewis Downing, principal chief of the Cherokees, thought the change ominous: “it appears to us that when once cut loose from our treaty moorings,” he wrote the Board of Indian Commissioners in 1870, “we will roll and tumble upon the tempestuous ocean of American politics and congressional legislation, and shipwreck will be our inevitable destination.”19
FIGURE C.1 Indian delegation, New York, 1871. The members of the delegation pictured here are (seated) Little Raven (front left, with cane), Bird Chief, Little Robe, and a Wichita chief named Buffalo Goad. Standing left to right are the interpreter Edmund Guerrier (with the long hair), the Indian agent Mahlon Stubbs, and John Simpson Smith, leaning with his arm on the shoulder of the Comanche interpreter Philip McCusker. Smith died shortly after he returned home. (Smithsonian Institution, National Anthropological Archives and Human Studies Film Archives)
The 1871 resolution did not put an end to existing treaty relations between the United States and the tribes, but they, too, came under assault. Stand Watie and his nephew Elias C. Boudinot established a tobacco company on Cherokee land in the 1860s and refused to pay federal taxes on the business, arguing that the Treaty of 1866 exempted them from the Internal Revenue Act of 1868. Article 10 of the treaty stated that any resident of the Cherokee nation “shall have the right to sell any products of his farm … without restraint, paying any tax thereon which is now or may be levied by the United States.” In its decision on the Cherokee Tobacco case of 1870, issued just a couple of months after Congress voted to end treaty making, the US Supreme Court held that an act of Congress could supersede a prior treaty.20
Boudinot lost his property in order to pay back taxes. Having rested his hopes on a treaty and lost, he now denounced treaties as a charade and argued for ending the special legal status of the tribes and for abolishing Indian Territory. He maintained that the Indians’ only hope lay in doing away with tribal governments, acquiring citizenship, and ending common landholdings. His position also had something to do with the fact that he tried to restore his fortunes by cultivating relations with railroad companies whose land grants depended on Indian land cessions or the dissolution of Indian Territory. Boudinot lobbied for territorial government, grants to railroads, and opening up Indian lands. He claimed he was acting in the best interests of the Cherokee people, but most Cherokees regarded him as a self-serving traitor: like father, like son. Unlike his father, he was not murdered, although his life was threatened. He pursued various business schemes and continued to argue for the abolition of Indian Territory, reopening old divisions between the Boudinot-Watie faction and the majority of Cherokees.21
The United States broke the Treaty of Fort Laramie six years after it was signed. In 1874 George Custer led an expedition into the Black Hills of South Dakota and verified reports of gold in the region. A government commission offered to purchase the Black Hills, but the Sioux dismissed its offers; Sitting Bull said that the hills were simply not for sale. The United States took them anyway. The army sent an ultimatum ordering all Sioux and Northern Cheyenne bands onto the reservations by January 31, 1876, and then launched a three-pronged “pacification campaign” against the “hostiles” who refused to come in. In June, Crazy Horse, the renowned Oglala war chief, turned back General George Crook at the Battle of the Rosebud and the Sioux and Cheyennes annihilated Custer’s command at the Battle of the Little Bighorn a week later. But the army hunted down the various bands in the next year or two. Sitting Bull fled to Canada; Crazy Horse surrendered in 1877 and was bayoneted to death in a guardroom scuffle.22 Another commission, led by George Manypenny, arrived on the reservations to obtain consent to the transfer to the United States of the “unceded territory” that included the Black Hills. Congress cut funding for rations to the agencies until the Lakotas agreed to cede the land. People recalled having to negotiate while under the guns of American soldiers. The Lakotas protested but the reservation chiefs signed. The commissioners managed to secure the agreement of only about 10 percent of the adult males—about 65 percent short of what the Treaty of Fort Laramie required—but in the wake of the “Custer Massacre” the government was in no mood to worry about such niceties. In February 1877 Congress passed a law taking the Black Hills and extinguishing all Sioux rights outside the Great Sioux Reservation. The “Great Sioux Nation” had shrunk from about 134 million acres as recognized in the 1851 Treaty of Fort Laramie to less than 15 million acres.
Ten years later, Congress passed the Dawes, or General Allotment, Act. The United States had included a provision for allotting lands to individuals who met certain requirements in about seventy of its Indian treaties, and most treaties negotiated after the mid-nineteenth century contained clauses providing for the division of tribal lands in severalty.23 But the new legislation, named after Senator Henry Dawes of Massachusetts who introduced it, triggered a renewed and massive assault on Native American landholdings. The reservations established by treaties like Medicine Lodge were supposed to be places where, under the tutelage of agents, farmers, and teachers, Indians would learn new ways and new values and gradually cease to be Indians. Instead, as Indian people resisted the imposition of alien ways and clung to traditional values in what remained of their homelands, reformers saw reservations functioning as obstacles to progress. Communal landholding and the Natives’ moral economy of sharing seemed to be holding them back. Reformers and the government lost patience with the reservation system; progress surely required breaking up the reservations into plots of private property and instilling in Indian people the values of hard work, thrift, and individual competition that they would need to survive in the capitalist world that was about to engulf them. Under the Dawes Act, reservation lands were surveyed, divided up, and allotted in 160-acre parcels to the heads of families. “Surplus lands” were opened for sale to non-Indians. The government dispatched commissions into Indian country to put allotment into effect and reservation lands established by treaties were opened for settlement.
The Sioux Act of 1888 applied the allotment act to the Great Sioux Reservation, dividing the Lakotas into six separate reservations and making “surplus lands” available for settlement. Congress passed another Sioux Act in 1889 and dispatched another commission, this one led by General George Crook, who told the Indians that a flood was coming and they must save what they could or see it all swept away. The Lakotas in their own councils had decided against agreement with the US government and already presented a united front. Finding that “it was impossible to deal with the Indians as a body in general councils,” the commissioners went to work “to convince individuals that substantial advantages to the Indians as a whole would result from an acceptance of the bill.” For a time, Crook said in his report, “the task seemed almost hopeless, but persistence prevailed and interest was awakened. As soon as the question became debatable the situation changed and success was assured.” Congress cut the amount of rations the commission promised, and another nine million acres were stripped away from the reservation. Angry and divided, Lakota people watched as American settlers moved onto lands that less than twenty-five years earlier had been set apart for the Indians’ “absolute and undisturbed use and occupation.”24
Between 1889 and 1893, the Cherokee Commission (frequently known as the Jerome Commission after its chair, David H. Jerome) purchased fifteen million acres of land in what was to become the State of Oklahoma. In addition to the Cherokees, it made agreements with the Iowas, Sac and Fox, Kickapoos, Potawatomis, Shawnees, Wichitas, Tonkawas, Poncas, Pawnees, Choctaws, and Chickasaws, and with the five tribes whose reservations were established by the treaties they made at Medicine Lodge. Restricted by Congress to pay no more than $1.25 per acre, the commissioners frequently resorted to deception, coercion, and intimidation.25
The tribes who had been at Medicine Lodge knew that the treaty was supposed to run until 1897 and saw no reason to negotiate for a reduction in their land before then. When the commissioners arrived on the Cheyenne and Arapaho reservation in 1890, the Arapahos were willing to consider their offers but most Cheyennes refused to sell or even to discuss selling. “The Great Spirit knows what you are saying and we don’t propose to give up this land and chop it up and take farms for the Indians in this reservation till the seven years are up,” declared a Cheyenne named Little Medicine. But the commissioners stuck to their task. With the help of George Bent and a team of attorneys (who were handsomely compensated for their services from the money paid to the Indians) they eventually managed to obtain the signatures they needed, and they acquired the Cheyenne and Arapaho land for about fifty cents per acre. In the 1960s the tribes brought their case before the Indian Claims Commission, arguing that the $1.5 million they received for the lands they ceded in 1890 was “unconscionable.” The Justice Department agreed and the government settled all the claims of the Southern Cheyennes and Southern Arapahos for $15 million.26
The commission had secured nine cession agreements from other tribes by the time it arrived on the Kiowa, Comanche, and Apache reservation. There, its primary purpose was to collect the signatures of three-fourths of the adult male Indians as a prerequisite for any further land cessions. The commission met opposition from the start. The old Yamparika Comanche Howea, or Gap in the Woods, one of only two living signers of the Medicine Lodge treaty, presented the commissioners with a copy of the treaty. Stumbling Bear, the surviving signer among the Kiowas, and other old Indians recalled the pledges the United States had made to them and refused to negotiate before the treaty terms expired. Big Tree cited the condition of the Cheyennes and Arapahos who had accepted allotments as reason enough for the Kiowas to resist. But the commissioners pointed to the clause in the treaty that the president could “at any time, order a survey of the reservation” and that Congress could “fix the character of the title held by each [Indian].” The proceedings, writes Native scholar Blue Clark, “rapidly grew confused, turned to turmoil, and finally degenerated into outright fraud.”27
Indians accused the commissioners and their interpreters of employing deception and coercion. “When the President of the United States sent you here,” asked a Kiowa named Apiatan, “did he tell you also, outside the general council, to get signers in a dishonest way?” Jerome was furious—“I will not be talked to that way”—and declared the council at an end. The Indians “left in an uproar,” and Jerome left with 456 signatures—more than the three-fourths he needed according to the Indian agent’s low count of 562 eligible signers. (Interior Department evidence indicated that the actual number of adult Indian men was between 631 and 725.) Suspecting they had been deceived by incorrect translation of the terms of the agreement they had signed, Lone Wolf and a group of Indians asked to see the document and to have their names erased. Both requests were denied.28
Satank’s son played a key role as an interpreter. A graduate of Pratt’s Indian Industrial School in Carlisle, he was a Presbyterian missionary and principal of an Indian school near Anadarko. He had taken a new name, Joshua Given or Givens, after the agency physician. Kiowas accused him of selling them out to the government. As the commissioners went about their work and compiled signatures, the son of the great war chief had to be guarded against irate Kiowas. Warned that he would pay for his misdeeds with his life, Joshua died shortly after; some said it was the result of a curse. The commission’s deception continued even back in Washington, where a new document was substituted containing counterfeit signatures. By various means, they came up with enough signatures to satisfy the three-quarter consent clause of the Medicine Lodge treaty.29 The reservation would be divided up into 160-acre allotments and the remainder of the lands opened for settlement.
There were protests immediately. Many of those who signed claimed the commissioners had deceived them as to what exactly they were signing. Lone Wolf, who had already been to Washington, D.C., in 1887 in a vain attempt to fight against passage of the Dawes Act, returned to the capital with a tribal delegation to lobby against congressional approval of the Jerome agreement. Tribal members from the Kiowa, Comanche, and Apache reservation submitted petitions repudiating the agreement, complaining about “mendacity, fraud, and coercion” in the commission’s dealings, pointing out that the Treaty of Medicine Lodge stipulated that each allotment would be 320 acres, not 160 acres. “The Kiowas, Comanches and Apaches are almost without exception, now that they understand it, uniformly opposed to the agreement,” reported Captain Hugh Brown, the acting agent on the reservation in August 1893. A petition submitted to Congress in January 1900 and signed by 571 Indian men said that they were following the path laid out at Medicine Lodge and preparing for the new days they realized were coming but that opening the reservation prematurely to white settlers would be a disaster: “We now realize that if this treaty is ratified we are doomed to destruction as a people.”30
The Indian Rights Association, a non-Indian reform group founded in 1882 to “bring about the complete civilization of the Indians and their admission to citizenship,” took up the Indians’ cause. For seven years the Indians and those who lobbied on their behalf managed to delay congressional ratification of the Jerome agreement. But this reservation was one of the last to be opened in Indian Territory and Congress was under enormous pressure to do so from railroad companies, land boomers, and whites around the reservation. In June 1900, the United States took possession and title to the almost three million acres of the reservation. It set aside 480,000 acres as common grazing land, allotted 445,000 acres in severalty, and earmarked 10,310 acres for agency, school, religious, and other purposes. That left two million acres of “surplus land” to be opened to settlement. The government paid the Kiowas just over 93 cents per acre.31 Americans by the thousands gathered on the borders of the reservation, registering claims and waiting eagerly for the reservation to be opened; others trespassed in search of quick profits.
The Comanche chief Quanah Parker acquiesced in the allotment but Lone Wolf kept up the fight. He returned to Washington with a delegation of nine Kiowas and Comanches in June 1901 and retained a former congressman and federal judge, William Springer, as an attorney. Secretary of the Interior Ethan Allen Hitchcock refused to recognize the delegation. With the support of the Indian Rights Association, Lone Wolf and Springer brought suit to try and prevent the allotment of the reservation. They based their case on the Treaty of Medicine Lodge and took it all the way to the Supreme Court. In US v. Kagama in 1886, the Supreme Court, citing the 1871 resolution, had affirmed congressional power over Indian country in jurisdiction over major crimes; in January 1903 the Court went a step further in its decision on Lone Wolf. To uphold Lone Wolf’s claim would mean “that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act if the assent of the Indians could not be obtained.” According to the Court, Congress had always exercised plenary power over Indians and could, if it saw fit, abrogate its own treaties with Indians. In other words, Indians had no rights that Congress was bound to protect. Whites streamed into the reservation. Kiowa reservation landholdings fell by 90 percent, from almost three million acres to just above three thousand acres by 1934.32
Like the Cheyennes and Arapahos, the Kiowas, Comanches, and Apaches subsequently received additional compensation: in 1955 the Indian Claims Commission awarded the three tribes more than $2 million for the lands they sold to the United States under the 1892 agreement. Then, in the 1970s the commission ordered the government to pay them more than $35 million for its “unconscionable” purchases of huge areas of land acquired under the treaties negotiated in 1865 and at Medicine Lodge in 1867.33 But Lone Wolf v. Hitchcock had ramifications well beyond the Kiowa reservation. The decision deprived all Indians of their land base and their treaty rights; “all aspects of tribal political and property rights were now subject to radical changes at the whim of the legislative branch.” In Blue Clark’s words, “The opinion cast a whole people into despair when not only their guardian but their friends abandoned them.” The decision “enshrined one of the fundamental rules in federal-Indian law, plenary power” and gave “the American frontier juggernaut … legal justification.” The “plenary power doctrine” still stands and with it Congress’s authority to abrogate Indian treaties.34
The Supreme Court, however, also developed canons of construction guiding the interpretation of Indian treaties. Acknowledging that the United States typically had the advantage in power, literacy, and language when treaties were negotiated, the Supreme Court in US v. Winans in 1905 ruled that treaties should be interpreted as Indians would have understood them at the time and that treaties were “not a grant of rights to the Indians, but a grant of rights from them.” In other words, rights, resources, and powers that were not expressly given up in a treaty or taken by federal statute were reserved to the Indians. In Winters v. US in 1908, the same Court ruled that if ambiguities occurred in the interpretation of treaties they should be construed in favor of the tribes.35 The courts have not always followed these canons of construction but treaties, ratified by the Senate, remain the law of the land and are preserved in Native American communal memories as still-binding commitments. In a sense, those treaties—those laws—were all that Indian people had to show for the loss of 97 percent of the land base of the United States. Typically quickly broken and long forgotten by Americans, treaties have been dusted off and scrutinized by Indian tribes and their attorneys and have often to come back to bite the power that dictated them. In documented commitments made to the tribes, sometimes in perpetuity, they inscribe Indian rights and provide the moral and legal leverage to assert those rights in modern America. Many tribes have upheld their treaties as sacred texts, even if the United States has not. In Federal Power Commission v. Tuscarora Indian Nation in 1960 (a case involving the taking of Indian land protected by treaty for a reservoir, in which the Supreme Court found in favor of the power commission), Justice Hugo Black wrote the dissenting opinion: “The solemn pledge of the United States to its wards is not to be construed like a money-lender’s mortgage ….Great nations, like great men, should keep their word.”36
Indian people in modern America have insisted that the United States keep its word. Damaging as treaties were, Indian people focused their anger on the breach and disregard of treaties more often than on the treaties themselves. After all, treaties recognized tribal sovereignty and established important rights; it was military action, legislation, and judicial decisions that negated that status and those rights. “The betrayal of treaty promises has in this generation created a greater feeling of unity among Indian people than any other subject,” Vine Deloria, Jr., wrote in Custer Died for Your Sins in 1969.37 The American Indian Movement (AIM) regularly invoked treaties in its campaigns. The Trail of Broken Treaties, a march on Washington, D.C., organized by AIM in 1972, demanded observance of past treaty commitments and restoration of constitutional treaty making as essential components of a “manifesto for construction of an Indian future in America.”38 AIM holdouts at the siege of Wounded Knee in 1973 demanded the boundaries of the Oglala Nation be restored according to those guaranteed by the 1868 Treaty of Fort Laramie. Indians and their attorneys, often with the support of the Native American Rights Fund founded in 1970, reached back into history and invoked treaties that were supposed to guarantee and protect their rights but that were often ignored in days when Indians had no voice in the courts.
In the new social and political climate of reform created by the upheavals of the 1960s and 1970s, judicial opinion was more sympathetic to Justice Black’s notion that the nation should live up to its treaty commitments. Treaties that dispossessed Indian people in the eighteenth and nineteenth centuries often became keys to Indian hope and sovereignty in the twentieth and twenty-first centuries. As early as 1959, in Williams v. Lee, a case that the legal scholar Charles Wilkinson regards as opening the modern era of federal Indian law, the Supreme Court held that the Navajos’ treaty in 1868 protected the tribe’s authority over internal issues and ruled that a non-Indian’s suit to collect a debt incurred by an Indian on the reservation fell under the exclusive jurisdiction of the tribal courts.39 In subsequent cases (Warren Trading Post Co. v. Arizona Tax Commission in 1965 and McClanahan v. Arizona Tax Commission in 1973) the Supreme Court turned again to the 1868 treaty and ruled that the state could not collect taxes from non-Indian businesses on the reservation or from Indians whose incomes were derived from reservation sources.
In the 1960s and 1970s, Northwest Coast Indians began to reassert their fishing rights that had been guaranteed in the treaties with Isaac Stevens in the mid-1850s by staging a series of “fish-ins.” Overfishing, pollution, dam building, and the destruction of habitat had steadily depleted salmon runs and many non-Indian fishermen reacted angrily, and sometimes violently, to what they saw as an Indian threat to a declining resource. The issue went to US District Court. Reviewing the treaties after almost 120 years, Judge George Boldt noted in his opinion that “the treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.” Boldt found in favor of the Indians, interpreting “fish in common” to mean “take an equal share” of the salmon and steelhead harvest. “Because the right of each Treaty Tribe to take anadromous fish arises from a treaty with the United States,” wrote Boldt, “that right is preserved and protected under the supreme law of the land, does not depend on State law, is distinct from rights or privileges held by others, and may not be qualified by any action of the State.” The decision sparked a virulent racist response from commercial and sports fishermen and met stiff resistance in Washington State but was upheld on review by the US Supreme Court in 1979.40 Great Lakes tribes have likewise invoked nineteenth-century treaties to secure their rights to hunt, fish, and gather wild rice. In 1983 the US Court of Appeals for the Seventh Circuit upheld the claims of Wisconsin Ojibwes that the treaties that had been signed guaranteed their rights to continue hunting, fishing, and gathering in the areas ceded by those treaties. The decision generated a backlash among local fishermen, and there was racial violence every spring during spearfishing season during the 1980s as Indians attempted to exercise their rights. In 1999 the Supreme Court ruled in a 5–4 majority that the Mille Lacs band of Ojibwe in Minnesota retained hunting, fishing, and gathering rights on lands it had ceded to the federal government in the treaty of 1837. No subsequent action by the federal government had expressly extinguished those rights. Anger and tensions over treaty rights remained high in that state, too.41
The Sioux never accepted the loss of the Black Hills.42 In 1923 they filed suit with the US Court of Claims, demanding compensation. The Court of Claims dragged its feet before dismissing the claim in 1942, and the US Supreme Court refused to review the decision. The Sioux tried again with the Indian Claims Commission but the commission dismissed the case in 1954 on the grounds that the claim had already been denied. The Sioux then fired their lawyer and had their claim reinstated on the basis that they had been represented by “inadequate counsel.” In 1974 the Indian Claims Commission decided that the government had taken the land in violation of the Fifth Amendment and had not paid just compensation; the commission awarded the Sioux $17.5 million plus interest. The government appealed, and the Court of Claims reversed the decision on the basis of res judicata, stating that the claim had already been litigated and decided back in 1942. But the court acknowledged “a more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history,” and this opened the door for the Sioux to seek compensation on the grounds of dishonorable dealings.43 In 1978 Congress passed an act enabling the Court of Claims to rehear the case. The Court of Claims found that the United States had taken the Black Hills unconstitutionally and reinstated the $17.5 million award, plus 5 percent interest, for a total of $122.5 million. The Justice Department appealed the decision, and finally, in 1980—fifty-seven years after the Sioux first brought suit—the Supreme Court heard the Black Hills case. It found that the annexation act of 1877 constituted “a taking of tribal property which had been set aside by the treaty of Fort Laramie for the Sioux’s exclusive occupation” and upheld the award. Having won their long-sought victory, the Sioux turned down the money. They remained adamant that the Black Hills must be returned. The award remains uncollected and with accumulated interest now stands at more than $1 billion.
In Maine, Penobscot and Passamaquoddy Indians brought suit for the return of about two-thirds of the state’s land to the tribes. The Indian Trade and Intercourse Act of 1790 had declared that transfers of Indian land were invalid unless they had the approval of Congress. Massachusetts and, after it became a state in 1820, Maine continued to make treaties with the Indians but none of the land sales that occurred after 1790 were submitted for approval. If the United States were to respect its own laws, the Indians believed they had a watertight case. In 1980 President Jimmy Carter signed the Maine Indian Claims Settlement Act, paying the Indians $81.5 million in compensation for lands taken in contravention of the 1790 law.
After the legal victories of the 1970s and early 1980s, a more conservative Supreme Court began to reverse the trend of rulings on Indian rights and by the turn of the millennium seemed to be making a sustained assault on tribal sovereignty.44 Nevertheless, Indian treaties remain the law of the land, and longtime scholar of Indian law Charles Wilkinson believes these old laws “emanate a kind of morality profoundly rare in our jurisprudence.” It goes beyond guilt or obligation. “Real promises were made … and the Senate of the United States approved them, making them real laws. My sense is that most judges cannot shake that. Their training, their experience, and finally, their humanity—all of the things that blend into the rule of law—brought them up short when it came to signing opinions that would have obliterated those promises.”45
Long after they were negotiated and signed, despite a sordid record of broken promises and despite being interpreted as strictly legal documents rather than as sacred pledges made by one people to another, treaties, resurrected and reaffirmed, could be a means for Indians to preserve themselves as a people.46 In the Indian way, treaties were not made to be broken; they had to be maintained and renewed, by repeatedly revisiting and honoring the agreement, exchanging gifts, and rebuilding trust and friendship. Treaties that functioned as instruments of colonialism can also be the means of restoring respectful relations between the United States and the Indian nations within its borders. More than thirty years ago, legal scholars Russell Barsh and James Youngblood Henderson called for “treaty federalism”—incorporating tribes into the federal system on the basis of treaty compacts. “The significance of treaties,” they wrote, “lies not in their specific promises of so many blacksmiths, or so many schoolhouses, which have little contemporary relevance, nor in the proprietary arrangements for boundaries, fishing rights, and the like, which retain great economic value and are responsible for most recent treaty-rights litigation. Treaties are a form of political recognition and a measurement of the consensual distribution of powers between tribes and the United States.”47 When Congress ended treaty making and then acted as if it had plenary power in its relations with Indian tribes (rather than simply the power to conduct those relations, which is what the commerce clause of the Constitution actually bestows), the United States rejected bilateral relations with Indian tribes and abandoned “the fundamental principle that our national government is one of limited powers.” Restoring respectful bilateral relations, argues Houma legal scholar N. Bruce Duthu, “would require a return to treaty-making, the only constitutionally sanctioned mechanism by which the federal government is empowered to engage in relations with Indian tribes.” That would not entail returning to nineteenth-century-style treaty making with individual tribes but could take the form of a convention, a kind of “master treaty” that would help establish “a firmer foundation for respectful coexistence” among the nation’s three sovereigns—the United States, the states, and the tribes.48
Treaty rights, law professor Rebecca Tsosie points out, carry moral as well as legal obligations. The federal government may have or claim the legal right to abrogate a treaty, but it has a moral obligation to act in good faith to racially and culturally distinct groups that have been unjustly treated. For Native peoples, the discourse of treaty rights is essentially about “the need to assert, maintain, and even demand recognition for tribal sovereignty.” The discourse of treaty rights involves calls for a recognition of the history of conquest and colonialism and a recognition of tribal sovereignty. “The treaties between the United States and Indian nations exemplify the commitment to tribalism and group-based separatism that Indian nations look to today in their efforts to gain recognition for their rights to self-determination.”49
The United States also has an obligation under international human rights to ensure the survival of distinctive ethnic groups. Article 37 of the United Nations Declaration on the Rights of Indigenous Peoples states: “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”50 One hundred forty-three nations adopted the declaration in 2007; eleven abstained, and only Australia, Canada, New Zealand, and the United States voted against it. Those four nations subsequently reversed their position. The United States signed on to the declaration in December 2010—the last nation to do so.
Treaties that functioned so often to separate Native peoples from their lands and cultures also established Native rights and recognized tribal sovereignty; when observed and honored in good faith, they have the potential to be instruments of restorative justice and healing. As tribal leaders, lawyers, judges, and academics wrestle with the meanings and implications of the specific terms of treaties, the relationships those treaties were supposed to establish between Indian tribes and the United States await renewal. Restoring treaty relations between the United States and Native nations offers a path toward reconciliation and cooperation based on good relations between the groups—the very thing that Indian people understood treaties to accomplish in the first place. Looking back to treaty making in the colonial era, Native law professor Robert A. Williams, Jr., recalls “a time when the West had to listen seriously to these indigenous tribal visions of how different peoples might live together in relationships of trust, solidarity, and respect.”51 Perhaps it is time to do so again.
Of course, a treaty-based relationship between Indian nations and the United States would meet considerable opposition. Many non-Indians resist treaty rights in any shape or form—especially as they see them being mobilized by modern tribal governments—and they complain that they suffer injustices when Indians successfully assert those rights. Transforming “defenses of self-interest into defenses of core American values,” conservative activists denounce the granting of “special rights” to historically disadvantaged Americans as un-American and a violation of the nation’s commitment to equal rights. They lament “that ‘ordinary,’ forgotten Americans have become the new victims of a nation that panders to the interests of former victims, thereby sacrificing the equal rights of deserving citizens.” No rights seem more special than Indian treaty rights, which elevate Indians to a class of “supercitizens.” Treaty commitments made in very different times and circumstances should not apply in modern America, they say.52 Whatever the merits and motivations of their arguments, some of the people who oppose Indian treaty rights would surely agree with the Ottawa chief Egushawa: treaties do indeed contain “pen and ink witch-craft, which they can make speak things we never intended, or had any idea of, even an hundred years hence.”