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Native Americans

Treaty-making Before 1871

From 1776 to 1871, the United States made more than 400 treaties with Native American tribes, and nearly all of them were ratified by the Senate in the same manner as treaties with foreign nations. American expansion encountered varying levels of resistance, from guerrilla warfare in the swamps of Florida to great cavalry battles on the plains in the 1860s. In some instances, the government simply used treaties to create the appearance of legality for what was actually a confiscation of land at gunpoint. In other parts of the country, treaties were part of a long process of diplomacy, accommodation, and confrontation that lasted for decades. Some treaties were very strong, others weak, and each must be understood in the context of the time and circumstances in which it was made.

Until the 1820s, the United States was preoccupied with securing its borders with Native American tribes. This was not motivated by Christian morality as much as by the need to legitimize the new American state in the eyes of European powers; to establish superior American claims to the Great Lakes, the Mississippi valley, and Florida, which were also claimed by Britain, France, and Spain; and to create peaceful conditions for the development of its existing settlements still east of the Appalachian Mountains.

During the Revolutionary War itself, the new American government negotiated treaties of alliance with the Wabanaki confederacy and with the tribes of the Ohio River valley. Once peace had been restored by the Treaty of Paris in 1783, American diplomats entered into alliances with the Haudenosaunee and with the southern confederacy of Cherokee, Creek, Choctaw, and Chicksaw, hoping to secure a safe, pro-American frontier. In the treaties of this period, tribes simply accepted U.S. "protection" and U.S. authority to regulate Native American trade. In other words, they agreed to be included in a new American sphere of influence. Apart from trade issues, however, they gave up none of their right to self-government, as the U.S. Supreme Court concluded in its famous 1832 decision, Worcester v. Georgia.

The Haudenosaunee and Ohio valley nations also continued to renew their treaties with Britain, however. As far as they were concerned, everything west of the Appalachians was still Indian Country; the U.S.-Canadian border did not extend into that region. American settlements west of the Appalachians led to a great uprising under Tecumseh, which coincided with the War of 1812. Once again, tribes fought on both sides, and their future was a major issue at the peace negotiations. The Treaty of Ghent (1814) made it clear that the U.S.-Canadian border did indeed divide Indian Country, and that only the U.S. could make treaties with the tribes south of that line.

The Treaty of Ghent secured the northern border of the States, while the U.S. purchase of Florida and Louisiana eliminated competition for tribal alliances with France and Spain as far west as the Mississippi. American diplomacy shifted from securing peace to acquiring lands for settlement, chiefly from tribes already under U.S. protection, between the Appalachian crest and the Mississippi. At first, tribes attempted to keep some of their main villages and farmland, selling only small parcels on the fringes of their territories. Beginning in the 1830s, however, the U.S. aimed for their complete "removal." To acquire lands for the relocation of eastern nations such as the Cherokee and Delaware, the U.S. made treaties with tribes west of the Mississippi, such as the Osage and Comanche. Treaties with the eastern tribes worked out the details of their move, which included the sale of their homelands to help pay for expenses, and for the development of new schools, farms, and roads in the west. Needless to say, many eastern tribes resisted, and those who left their homes did so only to avoid war.

American leaders still believed that the plains were economically worthless, and did not hesitate to promise the removed tribes that they would enjoy security and self-government in their new western homes forever. The U.S. even pledged that this western "Indian Territory" would remain exclusively Native American and would never be included within any state. At the same time, these removal treaties involved the U.S. more directly in internal tribal affairs than ever before. After arranging for the sale of the tribes' homelands, federal officials spent the proceeds on education, health, and social programs, as specified by each treaty. The federal government became a banker for removed tribes under these treaties. In legal terms, it became a trustee, managing tribal funds and property.

By the 1840s, American settlements had begun on the Pacific coast and on the edges of the Great Plains. Mexico had won its independence from Spain, and was viewed as the main obstacle to American expansion. In the Mexican War, the U.S. seized all Mexican territory north of the Rio Grande, and quickly made treaties with the largest nomadic Native American tribes of the Southwest-- the Navajo, Apache, and Ute - to secure the new international border. In the ten years following the Mexican War, the U.S. made treaties for the first time with the tribes of the West Coast, from California to Washington, although the Senate never ratified California treaties and some Oregon treaties. The Puget Sound (Washington State) treaties were particularly important for U.S. policy, because they helped settle the western border between the U.S. and British North America (Canada), a border so hotly disputed that it almost led to a third British-American war in 1854. Small and chiefly dependent on fishing, West Coast tribes generally agreed to cede most of their lands in exchange for the protection of their fishing rights.

Native American treaties made after the Mexican War contained some crucial new provisions, reflecting the growing military power and expansionism of Euro-Americans. Instead of merely accepting U.S. "protection," the Southwest and West Coast tribes agreed to "submit" to federal laws or regulations concerning Native Americans. Never before had the U.S. tried to extend its legislative power to Native Americans inside Native American territory. In a growing number of treaties in the 1850s, moreover, tribes agreed that the president could take land for roads and railroads, and divide the remaining Native American land into individual family farms ("allotments"). Any land left over was to be sold to pay for farming equipment, schools, and hospitals, which would be managed by the Office of Indian Affairs. Some tribal leaders believed that individualizing land ownership would give Native Americans stronger legal rights to keep their lands. Others simply felt they had no choice but to accept these new conditions. Allotment was carried out chiefly in Iowa, Kansas, Nebraska, and other valuable farming areas on the fringes of the Great Plains, where settlers created the greatest pressure. Most tribes of the desert and West Coast were not allotted, although their treaties authorized allotment. These tribes had little good farmland, and settlers in their regions were more interested in mining, logging and fishing.

By 1860, then, the U.S. employed treaties to establish total social programs under federal administration, which were aimed at "civilizing" Native Americans and assimilating them into the general population. Tribal territories became "reservations," and tribal laws were subject to federal laws. But these treaty provisions did not apply everywhere. An exception to this trend was the Indian Territory (Oklahoma), where removal treaties expressly guaranteed the right of tribes to complete self-government. These tribes observed the changes surrounding them - particularly the growing tide of settlers in Texas, Colorado and New Mexico - with alarm. When the first shots of the Civil War were fired at Fort Sumter, most tribes in the Indian Territory shifted their allegiances to the South. Treaties with the Confederated States of America, concluded in 1861, guaranteed the permanent independence of the Native American nations, were the South to win the war. As in the Revolutionary War and the War of 1812, then, Native American tribes fought on both sides to fulfill their treaty obligations.

As a result of the Union's victory in 1865, Oklahoma tribes, like the South itself, were forced to sign surrenders and to undergo the federally supervised "reconstruction" of their economies and political systems. Former slaves became tribal members under many of these treaties, and had the right to take shares of tribal lands and funds. On the whole, the U.S. renewed its old treaty commitments to tribal self-government in the Indian Territory, but subjected the tribal councils to special federal "governors" or Native American agents, or to a federal veto over their laws. This made tribes such as the Cherokee and Chickasaw more like present-day Puerto Rico or the Virgin Islands: partly self-governing, but still within the U.S. political system.

The Sioux of Minnesota and Dakota, together with allied tribes as far south as Colorado, also launched an offensive against encroaching settlements from 1864 to 1865. Although the Minnesota Sioux fared badly, and their leaders were hanged by President Lincoln, the plains war continued until 1868. Anxious to acquire additional lands on the plains for the resettlement of Civil War veterans and the post-war flood of European immigrants, the U.S. made more treaties and purchased more Native American land in the period between 1865 and 1868 than it previously had during any comparable period. At the same time, U.S. negotiators were forced to give the main plains tribes stronger assurances of the finality and permanence of their new reservation borders. In particular, the U.S. agreed that no more Native American land could be sold or opened for settlement, except with the approval of three-fourths of the adult men of the tribe. Tribal leaders hoped this would prevent the U.S. from trying to make future "treaties" with a handful of friendly individuals who did not represent the whole tribe.

Additional topics

Law Library - American Law and Legal InformationGreat American Court CasesNative Americans - Tribal Governance, Monitoring Government Interference, Support For Tribal Sovereignty, Treaty-making Before 1871