Indian Treaties and Congresses
To the Western Europeans who came to the New World, treaties were documents that essentially codified agreements made between two or more sovereignties. They could be made to end wars and reestablish peaceful relationships, define commercial interactions, create political and military alliances, or transfer territory from one nation to another.
The European discovery of the Americas created serious moral, legal, and cultural doubts about how to deal with Native Americans. Advocates of out‐and‐out conquest argued that Indians were either subhumans or heathens and were therefore incapable of having dominion over themselves or over property. In the 1530s, Francisco de Vitoria, who held the prima chair of theology at Salamanca University, wrote a series of discourses known as the Relectios in answer to the Spanish emperor's inquiries regarding the status of Native Americans under human, church, and natural laws. Victoria argued effectively that Indians were indeed human, had a religion, were politically organized, and held rights to property. He concluded that Indian land could not be taken by right of discovery, or by right of conquest in the absence of a just war. It had to be secured by purchase from the legitimate rulers of the tribes. The Spanish were thus legally obliged to treat with indigenous tribes as sovereign nations.
Every other European empire in the Americas more or less followed suit. In several cases, Indian groups were more powerful than the colonists militarily and the whites were forced to deal with them as equal, sovereign polities. Treaty negotiations with Native American nations became customary to establish boundaries, obtain land cessions, end wars, and gain trade concessions. Native Americans too had a long history of extratribal relations and numerous customs that helped manage affairs between nations.
By the time the American colonies gained independence, the treaty‐making process was well established and had become a ritual of no small consequence. Of course the Americans, who emphasized due process and documentation, always focused on the final wording of the treaties themselves. Tribal leaders, coming from societies that relied on the power of ceremony and the spoken word, probably paid more attention to the rituals of, and the speeches made during, the formal negotiations. Whatever the case, the councils and congresses called for the purposes of making treaties were often many‐sided exhibitions of generosity, oratory, and military might. Following tribal customs, gifts were always exchanged. The federal government had special silver peace medals struck for presentation to tribal leaders. Federal negotiators, in turn, received wampum, pipes, and sometimes weapons. Few councils occurred without a military presence, the officers and troops always at their parade‐ready best. The tribes, too, put on military displays of no mean quality. Witnesses have described hundreds of tribal horsemen appearing at treaty councils heavily armed and dressed in their finest apparel.
Since 1776, more than 1,000 treaty councils or meetings have been conducted to reach formal agreements between various tribes and the federal government. Many occurred at frontier fortifications; numerous others took place on tribal grounds. In the obvious attempt to impress upon the tribes the power of the federal government and the size of the white population, Indian leaders were invited to attend treaty councils in major cities. No fewer than twenty‐four ratified treaties were signed in St. Louis and at least sixty‐nine were negotiated in Washington, D.C. On hundreds of occasions tribes were asked to send delegations to tribal congresses at the Capitol to discuss problems and to reaffirm the relationship between the tribes and the federal government. President Bill Clinton called one such congress in 1994. The ceremonial side of treaty making—the desire to influence and awe the tribes—attested to the apparent seriousness the federal government attached to dealing with Native Americans. The tribes, in turn, placed equal and, as the United States became more powerful, even more weight on the process of treaty making to secure their sovereign rights. Native Americans in general felt betrayed when the federal government decided that it could not only end the process entirely but unilaterally abrogate specific provisions of Indian treaties.
The flaw in American Indian treaties that led to the betrayal of the tribes was built into the U.S. Constitution itself. Article VI clearly states that treaties, along with the Constitution itself and the laws of the United States, “shall be the supreme Law of the Land.” This stipulation followed customary practices in international relations, which construed treaties as commitments between two or more sovereigns that could not be abrogated without grave consequences. Once signed and ratified by the Senate, treaties were to carry the full weight of the Constitution and should not be violated even by federal statute. All lower levels of government and individual citizens were of course legally obligated to obey treaty provisions.
On the other hand, Article I, section 8, gave Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The word Commerce when used in regard to Indians was quickly assumed to have the same connotation as the term affairs. This clause also set Indian tribes apart from states and foreign nations, a distinction the Supreme Court would later use to decide that Indian treaties could be judged according to a very different set of rules.
In the Supreme Court cases Marbury v. Madison (1803) and McCulloch v. Maryland (1819), Chief Justice John Marshall established the precedent of judicial review, which empowered the federal judiciary to decide whether or not a statute was unconstitutional and thus null and void. Judicial review allowed the federal court system to decide which article of the Constitution, III or VI, actually governed Indian relations. The first inkling that the Supreme Court was leaning toward the commerce clause interpretation of Indian affairs came in a 1831 case, Cherokee Nation v. Georgia. Chief Justice Marshall, still on the bench after thirty years, ruled that the tribes acknowledged in treaties that they were under the protection of the United States and that “The Indian territory is admitted to compose a part of the United States.” Therefore, Marshall held, Indian tribes were not foreign but “domestic dependent” nations, and Article I, section 8, of the Constitution refers to Indian tribes by a “distinct appellation.” Although he used this argument to throw the Cherokee case out of court, Marshall nevertheless set the precedent of utilizing the commerce clause to define Indians and interpret the status of Indian tribes and treaties, under constitutional law.
In December 1870, the Supreme Court under Chief Justice Salmon P. Chase delivered one of the more perplexing rulings yet made in regard to Indian treaties. Two years before, Congress had imposed a tax on tobacco products and two Cherokee tobacco manufacturers, Elias C. Boudinot and Stand Watie, had refused to pay it, maintaining that the Cherokee treaty of 1866 exempted the Cherokees from any such levy. Quoting the supremacy clause of the Constitution, the Court reasoned in the Cherokee Tobacco Case that the Constitution really did not settle the problems that might arise when treaties conflicted with acts of Congress. The Court ruled that a “treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty,” placing treaties on an equal basis with ordinary legislation and weakening the supremacy clause considerably. This subjected the Cherokee treaty, and by extension all other Indian treaties, to unilateral congressional action.
Within three months, on 3 March 1871, Congress abolished treaty making with the tribes altogether. The act was as much the result of murky congressional politics as of the widespread belief that Indian tribes were really not worthy of being treated as sovereign states. For several years, the federal government had been subsidizing the railroad industry with land grants taken from the territorial concessions made in Indian treaties. The executive branch negotiated the treaties and the Senate ratified them. The lands obtained from the tribes were never really placed in the public domain. Members of the House of Representatives felt that their collective authority, as protectors of the electorate's interest in the public domain, had been usurped. The House used the power of the purse to halt allocations to the Indian Office and finally attached the rider abolishing treaty making to the Indian Appropriations Act. A major policy decision had thus been made within the framework of a relatively minor piece of legislation.
The act did not abrogate prior treaties, nor did it end the process of treaty making entirely. Because the treaties were still in effect, the only way to change or alter them was to make another treaty. Since Congress had abolished treaty making, however, the federal government instituted negotiating “agreements” with the tribes in 1872.
The most severe judicial blow made against Indian treaties came in the 1903 case, Lone Wolf v. Hitchcock. In 1867, the Kiowas and Comanches signed the Treaty of Medicine Lodge. Among other things, the treaty stipulated that no part of the Kiowa‐Comanche reservation in the Indian Territory could be ceded without the consent of a three‐fourths majority of the tribes' adult males. In the 1890s, Congress began the process of surveying and allotting tribal lands to individual Kiowas and Comanches in an effort to force them to become farmers and ranchers and enter mainstream American society. Surplus lands were to be sold to non‐Indians. Arguing that the sale violated the three‐fourths majority stipulation in the Medicine Lodge treaty, the lawyers for the Kiowa leader Lone Wolf took the case to the Supreme Court. The Court, however, found that Congress had the power to abrogate Indian treaties “from the beginning,” and thus had plenary authority over the tribes. In effect, Indian treaties were relegated to a lower level of law.
Since 1903, Indian treaties have been viewed in a somewhat different light. Treaties serve as the basis for the trust and the direct “government‐to‐government” relationships between the United States and the tribes. As a result of a number of legal precedents, Indian tribes now enjoy certain reserved rights that have not been specifically stripped away by congressional action. In short, a number of tribes have retained at least some sovereign rights recognized by treaty.
[See also Native Americans, U.S. Military Relations with.]
Felix S. Cohen , Handbook of Federal Indian Law, 1942.
Douglas C. Jones , The Treaty of Medicine Lodge, 1966.
Wilcolm E. Washburn , Red Man's Land, White Man's Law, 1971.
Vine Deloria, Jr. , comp., A Chronological List of Treaties and Agreements Made by Indian Tribes with the United States, 1973.
Francis Paul Prucha, ed., Documents of Federal Indian Policy, 1975.
Vine Deloria, Jr. and and Clifford M. Lytle , American Indians, American Justice, 1983.
Monroe E. Price and and Robert N. Clinton , Law and the American Indian, 1983.
David H. Getches,, Charles F. Wilkinson,, and and Robert A. Williams, Jr. , Federal Indian Law, 1993.
Francis Paul Prucha , American Indian Treaties, 1994.