6.2 Major treaties and agreements

Major treaties and agreements profoundly shaped Native American history and U.S.-tribal relations. From early colonial interactions to modern-day negotiations, these pacts defined boundaries, established reservations, and set policies that continue to impact indigenous communities.

Despite promises of peace and protection, many treaties were broken or poorly implemented. This legacy has led to ongoing legal battles as tribes fight to preserve their sovereignty, reclaim ancestral lands, and protect cultural resources.

Origins of treaty-making

Treaty-making between Native American tribes and European powers wasn't invented by colonists. Indigenous nations had long traditions of diplomacy that predated European arrival. Understanding those traditions helps explain why early treaties took the forms they did, and why misunderstandings were so common.

Pre-colonial indigenous agreements

Native nations maintained complex diplomatic systems well before European contact. Intertribal alliances were formed through ceremonial exchanges and oral traditions, with wampum belts serving as physical records of agreements between tribes. These weren't just decorative; specific bead patterns encoded the terms of the agreement.

• Clan-based diplomacy systems governed relations between nations
• Peace treaties often included adoption rituals to symbolize unity between formerly hostile groups
• These diplomatic traditions shaped how tribes approached negotiations with Europeans

European-indigenous early interactions

Early trade agreements established economic relationships between tribes and colonists, but fundamental differences in worldview created problems from the start. European concepts of exclusive land ownership clashed directly with many indigenous views of shared land use. A tribe might agree to share access to a territory, while Europeans understood the same agreement as a permanent land sale.

Language barriers compounded these misunderstandings. The Two Row Wampum Treaty of 1613 between the Haudenosaunee and Dutch is one of the earliest recorded agreements. It used two parallel rows of purple beads to represent two peoples traveling side by side without interfering with each other, setting a precedent for nation-to-nation relationships.

Treaty of Paris implications

The Treaty of Paris ended the Seven Years' War in 1763 and reshaped North American territorial control. France ceded vast territories to Britain, but here's the critical point: no indigenous nations were consulted, even though they lived on and controlled much of that land.

• The transfer of territory on paper sparked real resistance on the ground, most notably Pontiac's Rebellion (1763)
• In response, Britain issued the Royal Proclamation of 1763, which drew a line along the Appalachian Mountains and prohibited colonial settlement west of it
• The Proclamation was meant to stabilize relations with tribes, but colonists largely ignored it

Key 18th century treaties

These treaties laid the groundwork for how the new United States would deal with Native nations. A pattern emerged early: agreements that promised boundaries and protections, followed by pressure to renegotiate as settler demand for land grew.

Treaty of Fort Stanwix

Signed in 1768 between the British and the Iroquois Confederacy, this treaty established a boundary line between colonial settlements and Native territories. The Iroquois ceded large areas of land to the British, but much of that land actually belonged to other tribes (Shawnee, Delaware, Cherokee) who had no say in the negotiations.

This created a cascading problem: tribes whose lands were signed away by the Iroquois had no reason to honor the agreement, leading to further conflict on the frontier.

Treaty of Hopewell

This was actually a series of three treaties signed in 1785-86 between the new United States and the Cherokee, Choctaw, and Chickasaw nations. These were among the first treaties the U.S. negotiated as an independent country.

• Defined tribal boundaries and established trade relations
• Promised peace and friendship between the U.S. and these nations
• Included provisions for returning prisoners and regulating trade
• Set an early precedent for the U.S. treating tribes as sovereign entities capable of entering formal agreements

Northwest Ordinance impact

Passed in 1787, the Northwest Ordinance established a framework for U.S. expansion into the territory north of the Ohio River. It contained a notable provision: it recognized Native American rights to land occupancy and stated that Indian lands could only be taken through treaties or congressionally authorized wars.

In practice, this principle was frequently violated. But it did set an important legal precedent that tribal land rights existed and couldn't simply be ignored, a principle that would matter in later court cases.

19th century removal treaties

The 19th century brought a dramatic shift. Rather than negotiating boundaries, the U.S. government increasingly used treaties as tools to remove entire nations from their homelands east of the Mississippi.

Indian Removal Act context

Passed in 1830 under President Andrew Jackson, the Indian Removal Act authorized the president to negotiate treaties exchanging Native lands in the East for lands west of the Mississippi River. The law didn't technically authorize forced removal, but that's exactly what happened in practice.

Jackson and his supporters justified removal by arguing it would protect tribes from state governments and allow them to govern themselves in the West. In reality, removal served settler demand for valuable farmland, particularly in the Southeast.

Treaty of New Echota

Signed in 1835, this treaty is one of the most controversial in U.S.-tribal relations. A small faction of Cherokee leaders (the "Treaty Party") agreed to cede all Cherokee lands east of the Mississippi in exchange for territory in present-day Oklahoma and $5 million$ in compensation.

The critical problem: the Treaty Party did not represent the Cherokee Nation's elected government. Principal Chief John Ross and the vast majority of Cherokee people opposed the treaty. Despite a petition signed by nearly 16,000 Cherokee protesting the agreement, the U.S. Senate ratified it by a single vote.

The result was the Trail of Tears (1838-39), during which approximately 4,000 Cherokee died during forced relocation.

Fort Laramie Treaty series

Multiple treaties were signed at Fort Laramie, Wyoming, between the U.S. and various Plains tribes. The two most significant:

• 1851 Treaty: Defined territorial boundaries for several Plains nations and allowed safe passage for settlers heading west. In exchange, tribes received annuity payments.
• 1868 Treaty: Created the Great Sioux Reservation (including the Black Hills) and guaranteed hunting rights in unceded territories.

Both treaties were repeatedly violated. The 1868 treaty in particular became a flashpoint after gold was discovered in the Black Hills in 1874, leading to a military invasion of guaranteed Sioux territory.

Reservation system establishment

The reservation system fundamentally changed Native American life by confining tribes to specific, often much smaller, areas of land. Treaties during this period typically followed the same pattern: tribes gave up vast territories in exchange for a defined reservation, annuity payments, and promises of supplies and services.

Treaty of Fort Laramie 1851

This treaty defined territories for several Plains tribes, including the Sioux, Cheyenne, and Arapaho. It also allowed the U.S. to build roads and military posts through tribal lands.

• Tribes received promised annual payments of $$$50,000$$ in goods for 50 years (later reduced by the Senate to 10 years without tribal consent)
• The treaty failed to prevent conflict because gold discoveries in Colorado and Montana brought waves of settlers into treaty-guaranteed territory
• It's a clear example of how treaties broke down when economic incentives pushed settlers onto Native land

Medicine Lodge Treaty 1867

This series of three treaties with Southern Plains tribes (Kiowa, Comanche, Apache, Cheyenne, and Arapaho) established reservations in Indian Territory (present-day Oklahoma).

• The U.S. promised food, supplies, and education in exchange for massive land cessions
• A central goal was transitioning nomadic buffalo-hunting peoples to sedentary agriculture
• Many tribal members never agreed to the terms, and the treaties failed to end conflict on the Southern Plains

Treaty with the Sioux 1868

Also known as the Fort Laramie Treaty of 1868, this created the Great Sioux Reservation, which included the sacred Black Hills. Key provisions:

1. The U.S. agreed to close the Bozeman Trail and abandon military forts in Sioux territory
2. Sioux retained rights to hunt in "unceded Indian territory" in Wyoming and Montana
3. No cession of reservation land could occur without agreement of three-fourths of adult male Sioux

The treaty held for less than a decade. After Lieutenant Colonel Custer's 1874 expedition confirmed gold in the Black Hills, the U.S. government pressured the Sioux to sell. When they refused, the government seized the Black Hills in 1877. The Sioux have never accepted monetary compensation for this taking, and the legal dispute continues today.

Post-Civil War agreements

After the Civil War, U.S. policy shifted away from treaty-making and toward direct legislative control over Native affairs. Congress officially ended treaty-making with tribes in 1871, though existing treaties remained in force.

Peace Commission of 1867

Congress established the Indian Peace Commission to negotiate an end to warfare on the Plains. The commission produced the Medicine Lodge Treaty and the 1868 Fort Laramie Treaty.

• The commission recommended concentrating tribes on two large reservations (one in the Southern Plains, one in the Northern Plains)
• Its stated goal was separating Native Americans from white settlers to prevent violence
• In practice, the commission's work accelerated the reservation system

Dawes Act implications

Passed in 1887, the General Allotment Act (Dawes Act) wasn't a treaty but a unilateral policy that broke up communal tribal lands into individual allotments, typically 160 acres per family head.

• The stated goal was assimilation: turning Native people into individual farmers
• "Surplus" land left over after allotment was opened to white settlement
• The result was devastating: Native landholdings shrank from about 138 million acres in 1887 to roughly 48 million acres by 1934
• Tribal governments were weakened as communal decision-making over land was replaced by individual ownership

Curtis Act consequences

Passed in 1898, the Curtis Act extended allotment to the Five Civilized Tribes (Cherokee, Chickasaw, Choctaw, Creek, and Seminole), who had been exempted from the Dawes Act.

• Abolished tribal courts and governments in Indian Territory
• Prepared the ground for Oklahoma statehood (1907)
• Further eroded tribal sovereignty by dismantling governing structures that tribes had maintained even after removal

20th century developments

The 20th century brought a gradual shift toward recognizing Native American rights and reversing some of the worst policies of the allotment era. Progress was uneven, but several landmark laws changed the legal landscape.

Indian Citizenship Act 1924

This act granted U.S. citizenship to all Native Americans born in the United States. Before 1924, citizenship status varied; some Native people had gained citizenship through treaties, military service, or allotment, but many had not.

• Native Americans could now vote in federal elections while retaining tribal membership
• However, several states (Arizona, New Mexico, Maine) continued to block Native voting through literacy tests and other barriers into the 1950s and beyond
• The act reflected a shift from forced assimilation toward a more integrationist approach

Indian Reorganization Act 1934

The Wheeler-Howard Act reversed the allotment policy and marked a major turning point. Its key provisions:

1. Ended further allotment of tribal lands
2. Restored some surplus lands to tribal ownership
3. Encouraged tribes to adopt written constitutions and establish formal governments
4. Provided funds for land purchases and economic development

The act had real limitations. The government-approved constitutions sometimes replaced traditional governance structures, and not all tribes chose to organize under the act. Still, it stopped the hemorrhaging of tribal land and restored a degree of self-governance.

Indian Claims Commission 1946

The Indian Claims Commission was established to hear and resolve long-standing Native American land claims against the U.S. government. Tribes could now seek compensation for lands taken illegally or below fair value.

• Operated from 1946 to 1978
• Heard 370 cases and awarded approximately $\$818$ million in settlements
• A major criticism: the commission could only award money, not return land. Many tribes wanted their land back, not a check.

Modern era agreements

Modern legislation reflects ongoing efforts to address Native American rights, protect cultural resources, and support tribal economic development. These aren't treaties in the traditional sense, but they carry forward the legal relationship between tribes and the federal government.

Alaska Native Claims Settlement

The Alaska Native Claims Settlement Act (ANCSA), passed in 1971, resolved aboriginal land claims in Alaska through a unique corporate model.

• Transferred 44 million acres and $\$962.5$ million to Alaska Natives
• Created 12 regional corporations and over 200 village corporations to manage land and resources
• Extinguished aboriginal land claims and hunting/fishing rights in Alaska
• The corporate structure was controversial because it replaced traditional governance with a business model, and shares could eventually be sold to non-Natives

Native American Graves Protection

The Native American Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, addressed a long-standing injustice: the removal and display of Native American remains and sacred objects by museums and federal agencies.

• Requires federal agencies and institutions receiving federal funding to inventory Native American remains and cultural items
• Establishes a process for repatriation (returning items to affiliated tribes)
• Protects burial sites on federal and tribal lands
• Has led to the return of thousands of remains and sacred objects to tribal communities

Indian Gaming Regulatory Act

Passed in 1988, IGRA established the legal framework for tribal gaming operations, which have become a major source of revenue for many tribes.

• Created the National Indian Gaming Commission to oversee tribal gaming
• Defined three classes of gaming (Class I: traditional/ceremonial, Class II: bingo-style, Class III: casino-style)
• Class III gaming requires tribes to negotiate compacts with state governments
• Gaming revenue has funded tribal services, infrastructure, and cultural preservation, though benefits vary widely among tribes

Treaty rights vs reality

The gap between what treaties promised and what actually happened is one of the defining themes of Native American history. Understanding this gap is essential for making sense of contemporary legal disputes.

Broken promises and violations

Treaty violations by the U.S. government were not occasional lapses; they were systematic.

• Encroachment on treaty-guaranteed lands by settlers, railroads, and mining companies, often with government support
• Inadequate or delayed delivery of promised goods and services (annuities, food, supplies)
• Forced relocation despite treaty protections, as with the Cherokee removal
• Unilateral reduction of treaty terms by Congress (such as cutting the length of annuity payments promised at Fort Laramie in 1851)

Supreme Court interpretations

The courts have played a major role in defining what treaty rights mean in practice. Four cases are especially important:

• Worcester v. Georgia (1832): Chief Justice Marshall ruled that states had no authority over tribal nations, affirming tribal sovereignty. President Jackson reportedly refused to enforce the decision.
• Lone Wolf v. Hitchcock (1903): The Court ruled that Congress had "plenary power" over Indian affairs and could unilaterally break treaties. This decision severely weakened treaty protections.
• United States v. Winans (1905): Established the reserved rights doctrine, which holds that treaties don't grant rights to tribes; rather, tribes retain all rights not explicitly given up. This distinction matters enormously in fishing and hunting rights cases.
• McGirt v. Oklahoma (2020): The Court ruled that the Muscogee (Creek) reservation was never formally disestablished, reaffirming that 19th-century treaty boundaries still carry legal weight.

Contemporary treaty disputes

Treaty rights remain actively contested in courts and negotiations across the country.

• Water rights: Tribes in the American West are fighting for their share of increasingly scarce water resources, particularly in the Colorado River Basin
• Fishing rights: The Boldt Decision (1974) affirmed that Pacific Northwest tribes were entitled to up to 50% of the harvestable fish in their traditional waters
• Land claims: Settlements continue in New England and New York, where tribes argue that colonial-era land transfers were illegal
• Resource extraction: Disputes over oil, gas, and mineral extraction on or near treaty-guaranteed lands remain ongoing, as seen in the Dakota Access Pipeline controversy

Cultural impact of treaties

Treaties and the policies that followed didn't just redraw maps. They disrupted entire ways of life, and their cultural effects are still felt today.

Loss of ancestral lands

Forced relocation severed communities from places that held deep spiritual and practical significance.

• Separation from sacred sites and burial grounds disrupted religious practices
• Ecological changes in new territories altered access to traditional food sources and medicinal plants
• Kinship networks were fragmented as communities were split up or consolidated with unrelated groups
• The loss wasn't just geographic; it disrupted the cultural knowledge tied to specific landscapes

Forced assimilation policies

Treaties often included provisions that aimed to reshape Native cultures along Euro-American lines. The most damaging policies included:

• Boarding schools: Children were removed from their families and sent to institutions designed to eliminate Native languages and cultural practices. The motto of the Carlisle Indian Industrial School was "Kill the Indian, save the man."
• Religious suppression: The Indian Religious Crimes Code (1883) banned traditional ceremonies, including the Sun Dance and potlatch
• Allotment: Replacing communal land ownership with individual plots undermined collective governance and cultural practices tied to shared land
• Imposed governance: Western-style governmental structures replaced traditional leadership systems

Preservation of tribal sovereignty

Despite all of this, treaties also provided a legal foundation for tribal sovereignty that persists today.

• Treaties established that tribes are sovereign entities with a government-to-government relationship with the United States
• Specific treaty provisions protecting hunting, fishing, and water rights remain enforceable
• The treaty relationship forms the legal basis for modern tribal self-governance, including the operation of courts, police forces, and regulatory agencies
• Tribes continue to invoke treaty rights in negotiations over land, resources, and jurisdiction

Legacy and ongoing issues

The effects of historical treaties are not just history. They shape legal disputes, policy debates, and tribal governance right now.

Land claim settlements

Several major land claim settlements illustrate how treaty-era disputes continue to be resolved:

• Maine Indian Claims Settlement Act (1980): Resolved claims by the Passamaquoddy and Penobscot tribes that much of Maine had been taken in violation of the 1790 Trade and Intercourse Act
• Navajo-Hopi Land Settlement Act (1974): Addressed overlapping land claims between the two nations, resulting in controversial relocations
• Ongoing negotiations across the country attempt to balance historical claims with current land use, a process that rarely satisfies all parties

Water rights negotiations

Water rights are among the most consequential treaty-related issues in the West. The Winters Doctrine (from Winters v. United States, 1908) established that when the government created a reservation, it implicitly reserved enough water to fulfill the reservation's purpose.

• The Arizona Water Settlements Act (2004) resolved decades of disputes over tribal water rights in Arizona
• Negotiations in the Colorado River Basin are ongoing and increasingly urgent as drought and climate change reduce water supplies
• Tribal water rights are often senior (older) to those of non-Native users, giving tribes significant legal leverage but creating political tension

Federal recognition process

Federal recognition determines whether the U.S. government acknowledges a group as a sovereign tribal nation. Recognition matters because it affects access to federal services, land protections, and the legal standing to assert treaty rights.

• The Bureau of Indian Affairs oversees the recognition process, which requires evidence of continuous community, political authority, and descent from a historical tribe
• The process is lengthy and expensive, sometimes taking decades
• Controversies include denied recognitions and the efforts of previously terminated tribes (tribes whose federal status was revoked during the mid-20th century Termination Era) to regain recognition