Native Americans

At the end of the treaty era, Native American tribes still controlled one-tenth of the contiguous 48 states, or about one-fourth of the land between the Mississippi and the Rocky Mountains. Immigration from Europe accelerated, however, reaching its peak in the 1880s. The Indian Territory, and the large plains reservations, posed barriers to further settlement, but were protected by strong treaties, under which the U.S. had promised to provide the tribes with substantial financial aid for their development. Further allotment was impossible under the final round of plains treaties, and tribes were unwilling to part with any more of their reservations. Concerned by the increasing costs and difficulties of negotiating for more Native American land, Congress ordered the president to stop making Native American treaties in 1871.

This did not stop the president from making "agreements" with the tribes for their land, usually at the request of Congress. Agreements made after 1871 were essentially the same as treaties, except they did not imply that Native American tribes were independent nations. Often, they were made with tribal leaders chosen by the U.S., in violation of the tribes' own political processes, or in violation of the tribes' earlier treaties. The 1874 agreement for the purchase of the gold-rich Black Hills of South Dakota was typical. The 1874 agreement was negotiated with a few individual Sioux, although the 1868 Sioux treaty required the approval of three-fourths of the men of the tribe. Congress then passed a law ruling that the agreement overrode the treaty. The Sioux went to war over this - the war in which Custer fell - but the U.S. had the military power to wear down Sioux resistance and hold onto the Black Hills.

At the same time, the U.S. began to build railways through tribal lands in violation of treaties, and to establish federally controlled Native American courts and police on the reservations in order to enforce federal laws. Many of these laws were designed to destroy Native American culture rather than to protect Native Americans from settlers; one such example is a provision prohibiting any kind of traditional religious ceremonies, or "medicine men." In 1887, Congress passed the Dawes Severalty Act (General Allotment Act), which authorized allotments and the sale of "surplus" lands on those reservations where the tribes had not already agreed to this by treaty. A separate law, the Curtis Act, provided for the allotment of the Indian Territory as well. The Oklahoma tribes vigorously opposed this as a violation of their treaties, and they brought their objections to the U.S. Supreme Court. In two crucial decisions, Cherokee Nation v. Hitchcock (1902) and Lone Wolf v. Hitchcock (1903), the Supreme Court held that Congress has the power to modify or terminate Native American treaties without the Native Americans' consent.

This opened the way for Congress to treat all Native Americans the same, regardless of the treaties they have signed. Throughout the nineteenth century, Congress appropriated funds for Native American schools, hospitals, and other programs treaty-by-treaty. Treaties determined how much federal aid each tribe received, and how it was used. In 1921, the Snyder Act abolished this practice. All services and programs were combined into a single annual appropriation, broken down by objects (such as "health care") rather than by treaties. As a result, Native American tribes with weak treaties got more than they had bargained for, and tribes with strong treaties got less. More importantly, tribes could no longer use their treaties to demand any services at all. The Snyder Act and subsequent federal laws left Native American social programs to the discretion of Congress. After purchasing most of the country by treaty, the U.S. was no longer willing to pay the agreed price.

In the final days of World War II, in fact, Congress decided that it was time to "wind up" the Native American business. Many believed that Native Americans stayed on reservations only because they expected to be repaid someday for all of their broken treaties. This led Congress to establish the Indian Claims Commission in 1946. Although the commission was supposed to complete its work in ten years, it was still not finished when Congress decided to reassign its cases to the U.S. Court of Claims in 1978. The commission was not given the power to enforce Native American treaties, only to decide how much compensation each tribe should receive for broken promises. The Commission adopted a general rule of taking the value of the land or money promised to tribes a century ago, and adding interest. For example, if the U.S. had promised to set aside a reservation in 1868, and the land could have been sold for $1,000 in 1868, the tribe was awarded $1,000 plus interest from 1868. Land values were artificially low in the nineteenth century, however, since Native American tribes were being forced to give up so much of it, creating a temporary market surplus. Thus tracts worth billions today, like the Black Hills, were valued at 1 percent of their current price; with interest, this figure increased to about 10 percent. If tribal land had been taken without a treaty, moreover, the commission did not add the interest.

In House Concurrent Resolution 108 (1953), Congress declared its goal of terminating federal responsibilities for Native Americans as quickly as possible, and of making Native Americans ordinary citizens of the states. This "termination" program was very selective, targeted at tribes who were relatively prosperous and well-educated, such as the Menominee of Wisconsin and Klamath of Oregon. Congress assumed that "termination" not only ended tribes' eligibility for special Native American social programs, but also abolished (or "abrogated") their treaties. A 1968 Supreme Court decision involving the Menominee disagreed. Native American treaties continue in effect unless expressly abrogated by Congress, the Court explained. Since Congress had not specifically mentioned the Menominee treaty in its legislation "terminating" the tribe, Menominee treaty rights, such as hunting and fishing rights, could still be exercised by the members of the tribe. This decision paved the way for federal court decisions in the 1970s, reaffirming Native American treaty rights that both Congress and the States had believed to be extinct.

The decade from 1968 to 1978 was critical for the development of Native American treaty law. President Nixon declared an end to the termination policy of House Concurrent Resolution 108, and made a clear commitment to restoring and strengthening tribal self-government. Federal courts in Oregon and Washington handed Northwest tribes stunning victories in treaty fishing-rights disputes. Despite years of violence and efforts to overturn these decisions legislatively, both the Supreme Court and Congress eventually upheld them. On the other hand, Congress imposed a land-claims settlement on Alaska in 1971, which was intended to end tribal self-government in that state. In 1978, furthermore, the Bureau of Indian Affairs adopted rules for deciding which tribes are "recognized as eligible to receive federal services," and treaties were not mentioned as having any role in these decisions. The decade ended, as it began, with a surprise decision by the Supreme Court. In Oliphant v. Suquamish Indian Tribe (1978), the Court held that tribal rights may be lost by "implication," even rights that were never given up by treaty or taken away by Congress.

As the 1970s ended, then, there were signs of greater respect for Native American treaty rights, although Congress, the president, and the courts reserved their power to disregard treaties. The fishing-rights cases had demonstrated that at least some provisions in treaties could still have considerable economic significance. At the same time, the major Native American policy issues of the 1970s and 1980s - education, health, better resource management, and stronger tribal governments - were being addressed through a growing number of federal aid programs, rather than through the enforcement of treaties.