A treaty is simply an agreement between two or more sovereign nations. Following the Constitution, the United States recognized Indian nations as sovereign entities and thus negotiated treaties with them. From the viewpoint of American law, there are three basic steps involved in the treaty process: (1) the treaty is negotiated, (2) it is then ratified by the Senate, and (3) it is proclaimed (signed) by the President. All treaties, including those negotiated with American Indian nations, undergo this process.
The concept of making treaties was not something that had been introduced to American Indian nations by European invaders or by the United States. In his chapter in As Days Go By: Our History, Our Land, and Our People—The Cayuse, Umatilla, and Walla Walla, Antone Minthorn writes:
“For thousands of years, Indian people had made oral agreements with each other, sealing their compacts with wampum belts, prayers sanctified by tobacco, and gift-giving.”
Under the U.S. Constitution, when a treaty is proclaimed by the President, the treaty is considered to be in force, and it becomes a law which is superior to that of local or state laws. The Nez Perce Tribe, in their book Treaties: Nez Perce Perspectives, puts it this way:
“The treaties of the United States of America are the supreme law of the land: older than the states themselves and as valid as the Constitution of the United States.”
From 1778 until 1871 (the date when treaty-making with Indians officially ended), the United States formally ratified 369 treaties with American Indian nations. While the United States felt that it was not bound by Indian treaties until they were ratified by the Senate, a process which ranged from a few months to several years, the United States assumed that the Indian nations were bound by the treaties from the moment they were signed. It should be noted that while 369 treaties were ratified, over 800 were actually negotiated. In his entry on treaties in the Encyclopedia of North American Indians, Richard Monette reports:
“No tribe ever negotiated a treaty with the United States only to subsequently renege on the grounds that the tribe’s lawmakers did not ratify it.”
In negotiating treaties with Indian nations, the Americans viewed the treaties, and the Indians themselves, as being temporary. Believing that Indians were destined to vanish, the Americans generally viewed treaties as a way of increasing the pace of assimilation and the destruction of Indian cultures. In an article in Oregon Historical Quarterly, Alexandra Harmon writes:
“Purporting to believe that Indians could be transformed into de-tribalized small farmers within a generation or so (unless they died out first), U.S. treaty-writers specified a twenty-year plan of payment for Indian lands and gave themselves the power to consolidate or abolish tribal enclaves as conditions changed.”
While it is common to talk about Indian treaties as “peace” treaties, it is a misconception to assume that Indian treaties came about through warfare. While nearly all Indian treaties contain a clause or section about peaceful relationships between the United States and the Indian tribes, and between those tribes friendly to the United States, Indian treaties for the most part were never the end product of a war in which Indian nations were militarily defeated.
With regard to the process of negotiating the treaties, the United States made little effort to understand the nature of Indian government. Similarly, the American negotiators tended to assume that all Indian nations were the same and showed no understanding of the differences between the various Indian cultures. The United States attempted to streamline the negotiating process in two ways:
- First, American government negotiators preferred to deal with dictatorships rather than democracies. Since almost no Indian nations were dictatorships, this meant that the United States simply appointed the chiefs with whom they negotiated. In this way, the United States only had to deal with a handful of Indian leaders, leaders who tended to be agreeable to American interests as they had been appointed by American officials. The United States often ignored leaders who were chosen by Indian people and preferred to deal with the “puppet dictators” which it had set up.
- Second, American negotiators preferred to deal with as few Indian nations as possible. They failed to recognize band and tribal autonomy and simply created fictional tribes with whom they could negotiate. They often assumed that if a people spoke the same language, or languages that were closely related, that they could be considered to be a single tribe. The American negotiators, ignorant of Indian cultures, simply grouped autonomous bands together as if they were a single tribe. Then the negotiators appointed supreme chiefs to rule over tribes which had never before been a single governmental entity.
Concerning the process of making chiefs among the Ute, historian Richard Young, in his book The Ute Indians of Colorado in the Twentieth Century, writes:
“To simplify the government’s relationship with the tribe, Indian Service officials would usually select one of several band chiefs to be elevated to the preeminent position of ‘chief.’”
In explaining the American preference for a single chief among the Comanche, Bill Neeley, in his biography The Last Comanche Chief: The Life and Times of Quanah Parker, writes:
“American bureaucracy had ‘chains of command’ that always ended at the top: One big chief held sway over a well-defined governmental hierarchy.”
One common way of making chiefs was to simply bribe some Indian leaders. Richard Monette reports:
“Sometimes a recognized leader of the tribe was offered extra amenities, or drink, to persuade the leader to convince the tribe to negotiate. The result was that the more powerful United States, often acting in bad faith, became more comfortable with breaking treaties it had signed.”
In the treaty negotiations and in the treaties themselves, the American President is often referred to as “father” and the Indians as “children.” With regard to calling the President of the United States the Great White Father, Historian Herman Viola, in his book Diplomats in Buckskins: A History of Indian Delegations in Washington City, reports:
“He was never known as the Great White Father; Indians did not think in racial terms. Although the expression is commonly used today, not a single instance has been found in which Indians in the nineteenth century or earlier referred to the president as the Great White Father.”
In looking at how the term came about, Herman Viola says:
“Actually, it may have been a diplomatic tactic by the Indians. The father-child relationship is an important one among Indians. Since the Indian father tries to be as generous as possible to his children, tribal leaders probably used the father-child metaphor in their discussions with government officials to strengthen their requests for gifts and favors.”
Writing about the Sauk, historian Kerry Trask, in his book Black Hawk: The Battle for the Heart of America, puts in this way:
“The Indians in such relationships almost invariably referred to European men of power as ‘fathers’ and to themselves as ‘children,’ not so much out of a sense of submissive inferiority, but rather from their strong inclinations to define and understand interpersonal relationships in kinship terms.”
However, Herman Viola points out:
“Most government officials failed to grasp the metaphor, however. They thought the Indians were merely acknowledging their subordinate status to the president and, through him, to whites in general.”
Treaties were negotiated for many different reasons. In addition to establishing peace, and thus preventing war, the United States negotiated treaties to obtain land. The United States frequently gave voice to the idea that no Indian land was to be taken without the consent of the Indians. At the same time, the United States had a policy of recognizing Indian leaders who were favorable to land cession and who were willing to accept bribes. The Nez Perce Tribe puts it this way:
“Treaties were typically signed under relentless pressure from federal officials who wanted to somehow legitimize the invasion and theft of our land.”
Writing in 1881, Helen Hunt Jackson, in her book A Century of Dishonor: A Sketch of the United States Government’s Dealings with Some of the Indian Tribes, reports:
“All the early makers of treaties with the Indian congratulated themselves and the United States on the getting of valuable land by the million for next to nothing, and, as years went on, openly lamented that ‘the Indians were beginning to find out what lands were worth;’ while the Indians, anxious, alarmed, hostile at heart, seeing themselves harder and harder pressed on all sides, driven ‘to provide other sources for supplying their wants beside those of hunting, which must soon entirely fail them,’ yielded mile after mile with increasing sense of loss, which they were powerless to prevent, and of resentment which it would have been worse than impolitic for them to show.”
With regard to the use of treaties as a means of obtaining title to Indian land, Paul VanDevelder, in his book Savages and Scoundrels: The Untold Story of America’s Road to Empire Through Indian Territory, writes:
“By means of this sometimes cruel, sometime amicable legal instrument, the United States acquired 185 billion acres of Indian-owned land.”
As a result, in the nineteenth century, the United States was the largest real estate broker in the world.
Another reason for negotiating treaties was to establish and regulate commerce with the tribes. Early in the American era, Thomas Jefferson had recognized that the best way to obtain Indian land was to get the Indians into debt. Once the debt was large enough, then the Indians would be forced to cede their land to pay for their debts. Thus, the United States wanted to control Indian trade, to make sure that the tribes were not trading with British and French companies, and to be able to extend them credit for the goods which they wanted.
With regard to treaties, historian Peter Iverson, in his book When Indians Became Cowboys: Native Peoples and Cattle Ranching in the American West, observes:
“Americans prided themselves on being people of laws, of the sanctity of contracts, of the importance of keeping one’s word. Somehow, the treaties fell outside of this framework. Agreements with individual tribes did not have to be honored.”
While there are some people who feel that Indian treaties somehow were a gift of special rights and privileges from the United States to the Indians, this was not actually the case. The rights specified in the treaty were sovereign rights which the tribes retained for themselves. With regard to treaty rights, the Nez Perce Tribe reports:
“The treaties did not bestow to us, either as a tribe or as individuals, any rights that we, as Nez Perce, had not previously enjoyed.”
Indian treaties were generally not self-executing: that is, once they were proclaimed, very few of the provisions in them took effect and became law. Treaties which called for annuity payments, for example, required that Congress pass the enabling legislation to appropriate the funds for these payments and to establish the procedures for paying the annuities. Thus, legal historians Vine Deloria and David Wilkins, in their book Tribes, Treaties, and Constitutional Tribulations, point out:
“…appropriations acts became the most important aspect of the legislative agenda for Indians.”
It was not uncommon for Congress to reduce the annuities which had been agreed to in treaty council.
Indians 101
Twice each week this series explore American Indian topics. With this essay, there have been 1,100 installments of Indians 101. More from this series:
Indians 101: American Indians & the United Nations
Indians 101: Cherokee Treaty Claims
Indians 101: American Indian Treaties in 1816
Indians 101: Treaties and Councils in 1819, 200 years ago
Indians 101: Indian treaties 200 years ago, 1820
Indians 101: A Chippewa Treaty
Indians 201: The 1854-1855 Western Washington Treaties
Indians 101: Chehalis Treaties and Reservations
