6.1 Treaty-making process

Origins of treaty-making

The treaty-making process between Native American tribes and European powers (and later the United States) established the legal and diplomatic framework that still shapes Native American rights today. These treaties were not one-sided impositions from the start. They grew out of a collision between two very different diplomatic traditions, each with its own logic and legitimacy.

Pre-colonial indigenous agreements

Long before Europeans arrived, Native peoples had sophisticated systems for making agreements with one another. Intertribal alliances were formed through ceremonial exchanges and oral agreements, not written contracts. Wampum belts served as physical records of these agreements. The patterns woven into the belts encoded specific terms and commitments, making them far more than decorative objects.

Diplomacy was often rooted in kinship. Creating family-like bonds between groups established mutual obligations of peace and trade. Decision-making within tribes tended to emphasize consensus-building, which meant negotiations could be lengthy but produced agreements with broad support.

European diplomatic traditions

Europeans brought a different set of assumptions to the table:

• The Westphalian sovereignty concept (from the 1648 Peace of Westphalia) treated nations as exclusive territorial units, which influenced how Europeans structured treaties around fixed boundaries
• Written documents were the standard for formalizing agreements, and only the written version was considered legally binding
• European monarchs often claimed authority through divine right, which shaped how they viewed their power to negotiate over lands they had never seen
• Ratification processes reflected European governmental structures, requiring approval from legislatures or monarchs back home

Early colonial treaties

The earliest treaties set precedents that echoed for centuries. The 1621 treaty between Plymouth Colony and the Wampanoag, led by Massasoit, established mutual defense and trade obligations. It's one of the first documented diplomatic agreements between English colonists and a Native nation.

The Albany Congress of 1754 attempted to standardize how colonies dealt with Native tribes, though it largely failed to unify colonial approaches. More consequentially, the Royal Proclamation of 1763 established the British Crown's exclusive right to negotiate with Native Americans, barring individual colonists or colonies from making their own land deals. This principle of centralized treaty authority carried over into U.S. policy after independence.

Structure of treaties

Parties involved

On the Native side, tribes were represented by chiefs, headmen, or other designated negotiators chosen according to each tribe's own governance traditions. The colonial government or, later, federal commissioners represented the other side. Witnesses often attended, including neutral parties or respected community members from both sides. Interpreters were essential participants, since negotiations crossed not just language barriers but entirely different worldviews.

Treaty language and translation

Treaties were written primarily in English, with terms translated orally for Native signatories. This created a fundamental asymmetry. Legal terminology like "cede," "fee simple," or "in perpetuity" often had no direct equivalents in Native languages. Negotiators sometimes used metaphorical language to bridge these gaps, but the metaphors could obscure as much as they clarified.

The deepest misunderstandings often involved land ownership. Many Native cultures understood land use as shared and seasonal, not as something that could be permanently transferred to a single owner. When a treaty said a tribe "ceded" territory, the two sides frequently understood that word very differently.

Ceremonial aspects

Treaty-making was not purely a legal exercise. Ceremonies gave agreements their moral and spiritual weight:

• Smoking of peace pipes (calumets) symbolized agreement and goodwill, binding parties in a way that carried spiritual obligation
• Gift exchanges reinforced the relationship between parties and signaled good faith
• Oral recitations of treaty terms complemented the written documents, and for many tribes, the spoken words carried more authority than the paper
• Feasts and celebrations often accompanied signings, embedding the agreement in a broader social context

Negotiation process

Selection of representatives

Tribal leaders were chosen based on traditional governance structures, which varied widely. Some tribes sent war chiefs, others sent civil leaders, and still others sent councils of elders. The U.S. government appointed commissioners or high-ranking military officials. Elders and spiritual leaders were often part of tribal delegations.

Women's roles in negotiations varied significantly among different Native cultures. In matrilineal societies like the Haudenosaunee (Iroquois), women held substantial influence over diplomatic decisions, including the power to approve or reject treaties through clan mothers.

Role of interpreters

Interpreters did far more than translate words. They served as cultural mediators, explaining concepts that had no equivalent on the other side. The quality and loyalty of interpreters could make or break a negotiation. Some interpreters held conflicting loyalties, working for traders or government agents while supposedly representing tribal interests. Inaccurate or deliberately misleading translations contributed to treaties that tribes later contested.

Diplomatic protocols

Negotiations followed structured protocols:

1. Formal introductions and statements of purpose opened the proceedings
2. Each side presented its positions through speeches, with turn-taking respected
3. Caucusing allowed parties to confer privately before responding
4. Ceremonial gift exchanges marked transitions between stages of the process
5. Final agreement was formalized through both written signing and ceremonial acts

Key treaty components

Land cessions

Land cessions were the core of most treaties from the U.S. perspective. These provisions defined the boundaries of territories transferred to the U.S. government, often using maps or geographical descriptions (rivers, mountain ridges, survey lines). Compensation for ceded land varied enormously between treaties. Some tribes negotiated retention of use rights, allowing continued hunting, fishing, or gathering on ceded lands even after title transferred.

Reservation boundaries

Treaties established reservations as areas reserved for the exclusive use of specific tribes. These were almost always smaller than traditional tribal territories. Some treaties included provisions for future reduction or allotment of reservation lands, essentially building in mechanisms for further land loss.

Boundary disputes were common because descriptions were often vague ("from the big rock to the bend in the river") or based on inaccurate surveys. These ambiguities created conflicts that persisted for generations.

Hunting and fishing rights

Many treaties preserved tribal access to traditional food sources beyond reservation boundaries. The phrase "usual and accustomed places" appears in numerous treaties, particularly in the Pacific Northwest, guaranteeing tribes the right to hunt and fish at traditional sites even on ceded land.

Some treaties specified seasons, methods, or quotas for resource harvesting. The interpretation of these rights remains actively contested today, with major court cases still being decided over fishing and hunting access.

Monetary compensation

Compensation took several forms:

• Annuities: regular annual payments to tribes, sometimes for a fixed number of years, sometimes in perpetuity
• Lump sum payments: one-time cash settlements
• In-kind provisions: goods, services, education, or agricultural equipment
• Trust funds: money held and managed by the federal government on behalf of tribes

The actual delivery of promised compensation was notoriously unreliable. Annuity goods were frequently late, of poor quality, or skimmed by corrupt Indian agents before reaching tribal members.

Treaty ratification

Tribal approval methods

How tribes approved treaties depended on their own governance traditions. Some required consensus among tribal members or councils, a process that could take considerable time. Others relied on the authority of principal chiefs. Intra-tribal disputes over treaty acceptance were common, and the U.S. government sometimes exploited these divisions by negotiating with factions rather than the tribe as a whole.

U.S. Senate ratification process

Under the U.S. Constitution (Article II, Section 2), treaties required a two-thirds majority vote in the Senate for approval. The process worked as follows:

1. The president (through appointed commissioners) negotiated the treaty
2. The Senate Foreign Relations Committee reviewed the treaty and recommended action
3. The full Senate debated and voted, sometimes proposing amendments to the text
4. Once ratified, the treaty became the "supreme law of the land" under the Supremacy Clause (Article VI)

Senate amendments could significantly alter treaty terms, sometimes without the knowledge or consent of the tribal signatories.

Executive branch role

The president drove the treaty-making process by appointing commissioners and setting negotiation priorities. After Senate ratification, the president issued a formal treaty proclamation. Executive orders were sometimes used to implement treaty provisions or to create reservations outside the formal treaty process. The Department of the Interior (established 1849) eventually took over day-to-day responsibility for treaty implementation through the Bureau of Indian Affairs.

Implementation challenges

Enforcement mechanisms

Enforcing treaties proved far more difficult than signing them. Indian agents were appointed to oversee compliance on reservations, but many were underfunded, incompetent, or corrupt. The U.S. military was sometimes deployed to enforce treaty terms, though it more often enforced them against tribes than against encroaching settlers. Tribal police forces were established on some reservations, but jurisdictional questions about who had authority over treaty disputes plagued the system from the start.

Violations and disputes

Treaty violations were chronic and came from multiple directions:

• Settlers encroached on tribal lands, and the federal government rarely removed them as treaties required
• Resource exploitation (mining, logging, grazing) violated treaty-protected rights
• The government frequently failed to deliver promised goods, payments, or services
• Misinterpretation of treaty language, especially around land ownership and use rights, caused ongoing disagreements

Renegotiation attempts

Changing circumstances, particularly westward expansion and the discovery of valuable resources on tribal lands, created constant pressure for treaty revisions. Tribes were often forced to accept less favorable terms in replacement treaties. The U.S. government also engaged in unilateral abrogation, simply breaking or ignoring treaty terms without tribal consent. In 1946, Congress established the Indian Claims Commission to address historic grievances, though its remedies were limited to monetary compensation rather than land return.

Notable treaties

Treaty of Fort Stanwix (1768)

Signed between the British and the Iroquois Confederacy, this treaty established a western boundary line for colonial settlement along the Ohio River. It significantly influenced subsequent U.S.-Native American treaty-making by establishing the precedent of large-scale land cessions. However, the treaty was deeply controversial because the Iroquois ceded lands occupied by other tribes (Shawnee, Mingo, Cherokee) who had not agreed to the terms.

Treaty of Hopewell (1785-86)

This series of treaties with the Cherokee, Choctaw, and Chickasaw was among the first negotiated under the new U.S. government. The treaties defined boundaries and trade relationships in the post-Revolution South and established the precedent that the federal government, not individual states, held treaty-making authority with tribes. In practice, states and settlers routinely ignored the Hopewell provisions, leading to continued conflicts.

Treaty of Fort Laramie (1851 and 1868)

Two separate treaties carry this name, and both are significant:

• The 1851 treaty with Plains tribes (Lakota, Cheyenne, Arapaho, and others) defined tribal territories and guaranteed safe passage for settlers on the Oregon Trail in exchange for annuity payments
• The 1868 treaty established the Great Sioux Reservation, including the Black Hills, and promised to keep white settlers out

The 1868 treaty was violated after gold was discovered in the Black Hills in 1874, leading to the Great Sioux War. The Sioux land claim based on this treaty remains unresolved. In 1980, the Supreme Court awarded over $100 million in compensation (United States v. Sioux Nation), but the Lakota have refused the money, demanding return of the land instead. The trust fund has grown to over $1 billion.

Treaty era periods

Pre-Revolutionary War treaties

These earliest treaties focused on trade relationships and military alliances, reflecting the reality that European powers needed Native cooperation. Individual colonies rather than any central authority typically conducted negotiations, and competition between Britain, France, and Spain for Native alliances gave tribes significant diplomatic leverage.

Early republic treaties (1780s-1820s)

Treaties of this period emphasized peace and friendship between the U.S. and Native nations. They began the process of defining tribal territories and included provisions for trade regulation. Many of these treaties were violated almost immediately as U.S. expansion put pressure on tribal lands, revealing the gap between treaty promises and political reality.

Removal era treaties (1830s-1840s)

Following the Indian Removal Act of 1830, treaties became tools for relocating eastern tribes to lands west of the Mississippi. Many of these treaties were obtained through coercion or outright fraud, negotiated with unrepresentative factions or under threat of military force. They promised permanent homelands in Indian Territory (present-day Oklahoma) in exchange for eastern lands. The resulting forced relocations, most infamously the Trail of Tears (1838-39), killed thousands of Cherokee, Choctaw, Chickasaw, Creek, and Seminole people.

Reservation era treaties (1850s-1871)

The final period of formal treaty-making established the reservation system across the western United States, dramatically reducing the land base of many tribes. These treaties included provisions for government services and limited tribal self-governance. In 1871, Congress ended formal treaty-making with tribes through a rider attached to an appropriations bill, though existing treaties remained in force and the government continued making "agreements" that functioned similarly.

Impact on tribal sovereignty

Recognition of tribal nations

Treaties acknowledged tribes as distinct political entities capable of entering into government-to-government agreements. This recognition is foundational to tribal sovereignty today. Critically, treaties recognized rights that tribes already possessed. The U.S. did not grant sovereignty to tribes; it acknowledged pre-existing sovereignty through the treaty relationship.

Limitations on tribal authority

At the same time, treaties progressively restricted tribal authority. Many treaties required tribes to conduct foreign relations exclusively through the United States and placed tribes under U.S. "protection," creating a dependency relationship. Over time, treaties imposed U.S. legal and governance structures on tribal affairs and created the framework for federal plenary power over Indian affairs, the doctrine that Congress has broad authority over tribal matters.

Trust relationship establishment

The treaty relationship created a trust responsibility: the federal government assumed fiduciary obligations to tribes, including protection of tribal lands and resources and provision of services (health care, education, law enforcement) to tribal members. This trust relationship remains the legal foundation for modern federal Indian law and policy, though tribes and advocates argue the government has consistently failed to meet its trust obligations.

Treaty rights today

Supreme Court interpretations

Key Supreme Court decisions have shaped how treaty rights are understood:

• Worcester v. Georgia (1832): Chief Justice Marshall affirmed that tribal sovereignty within reservation borders was protected from state interference
• United States v. Winans (1905): Upheld off-reservation treaty fishing rights, establishing the "reserved rights" doctrine, which holds that treaties reserve pre-existing rights rather than granting new ones
• Minnesota v. Mille Lacs Band (1999): Reaffirmed Ojibwe usufructuary rights (rights to hunt, fish, and gather) on ceded lands under an 1837 treaty

Ongoing cases continue to define the scope of treaty obligations.

Modern treaty claims

Historic treaty violations have produced significant modern legal actions:

• Land claim settlements in states like Maine and Rhode Island have resulted from recognition of treaty violations
• Water rights adjudications based on the Winters doctrine (1908) recognize treaty-reserved water rights
• Environmental protection efforts are increasingly grounded in treaty guarantees
• Cultural resource management, including repatriation of sacred objects, draws on treaty provisions

Treaty-based resource management

Treaties have become the basis for collaborative resource management. Co-management agreements for fisheries and wildlife, particularly in the Pacific Northwest, give tribes a direct role in managing resources on ceded lands. Federal agencies are required to consult with tribes before taking actions that affect treaty rights. Traditional ecological knowledge is increasingly integrated into resource decisions, and treaty-protected resources provide economic development opportunities for tribal communities.

Critiques of treaty-making

Power imbalances

The treaty-making process was rarely a negotiation between equals. The U.S. often negotiated under implicit or explicit threat of military force. Government negotiators typically had greater access to information, legal expertise, and resources. In some cases, tribal leaders who signed treaties lacked the authority under their own governance systems to cede lands or rights, making those treaties legally questionable even by the standards of the time.

Cultural misunderstandings

Fundamental differences in worldview created misunderstandings that went beyond translation errors. Many Native cultures understood land as a shared, living entity with spiritual significance, not as a commodity to be bought and sold. Oral traditions clashed with the written nature of treaties, since tribes often considered the spoken negotiations more authoritative than the written document. Concepts of time, future planning, and the meaning of "permanent" also differed between cultures.

Broken promises and trust

The U.S. government's record of honoring treaties is, by any measure, poor. Treaty obligations have been chronically underfunded. Terms have been unilaterally changed without tribal consent. Promised protections of tribal lands from encroachment were rarely enforced. The cumulative effect has been a deep erosion of trust that continues to shape the relationship between tribal nations and the federal government today.