There were protests immediately. Many of those who signed claimed the commissioners had deceived them as to what exactly they were signing. Lone Wolf, who had already been to Washington, D.C., in 1887 in a vain attempt to fight against passage of the Dawes Act, returned to the capital with a tribal delegation to lobby against congressional approval of the Jerome agreement. Tribal members from the Kiowa, Comanche, and Apache reservation submitted petitions repudiating the agreement, complaining about “mendacity, fraud, and coercion” in the commission’s dealings, pointing out that the Treaty of Medicine Lodge stipulated that each allotment would be 320 acres, not 160 acres. “The Kiowas, Comanches and Apaches are almost without exception, now that they understand it, uniformly opposed to the agreement,” reported Captain Hugh Brown, the acting agent on the reservation in August 1893. A petition submitted to Congress in January 1900 and signed by 571 Indian men said that they were following the path laid out at Medicine Lodge and preparing for the new days they realized were coming but that opening the reservation prematurely to white settlers would be a disaster: “We now realize that if this treaty is ratified we are doomed to destruction as a people.”30
The Indian Rights Association, a non-Indian reform group founded in 1882 to “bring about the complete civilization of the Indians and their admission to citizenship,” took up the Indians’ cause. For seven years the Indians and those who lobbied on their behalf managed to delay congressional ratification of the Jerome agreement. But this reservation was one of the last to be opened in Indian Territory and Congress was under enormous pressure to do so from railroad companies, land boomers, and whites around the reservation. In June 1900, the United States took possession and title to the almost three million acres of the reservation. It set aside 480,000 acres as common grazing land, allotted 445,000 acres in severalty, and earmarked 10,310 acres for agency, school, religious, and other purposes. That left two million acres of “surplus land” to be opened to settlement. The government paid the Kiowas just over 93 cents per acre.31 Americans by the thousands gathered on the borders of the reservation, registering claims and waiting eagerly for the reservation to be opened; others trespassed in search of quick profits.
The Comanche chief Quanah Parker acquiesced in the allotment but Lone Wolf kept up the fight. He returned to Washington with a delegation of nine Kiowas and Comanches in June 1901 and retained a former congressman and federal judge, William Springer, as an attorney. Secretary of the Interior Ethan Allen Hitchcock refused to recognize the delegation. With the support of the Indian Rights Association, Lone Wolf and Springer brought suit to try and prevent the allotment of the reservation. They based their case on the Treaty of Medicine Lodge and took it all the way to the Supreme Court. In US v. Kagama in 1886, the Supreme Court, citing the 1871 resolution, had affirmed congressional power over Indian country in jurisdiction over major crimes; in January 1903 the Court went a step further in its decision on Lone Wolf. To uphold Lone Wolf’s claim would mean “that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act if the assent of the Indians could not be obtained.” According to the Court, Congress had always exercised plenary power over Indians and could, if it saw fit, abrogate its own treaties with Indians. In other words, Indians had no rights that Congress was bound to protect. Whites streamed into the reservation. Kiowa reservation landholdings fell by 90 percent, from almost three million acres to just above three thousand acres by 1934.32
Like the Cheyennes and Arapahos, the Kiowas, Comanches, and Apaches subsequently received additional compensation: in 1955 the Indian Claims Commission awarded the three tribes more than $2 million for the lands they sold to the United States under the 1892 agreement. Then, in the 1970s the commission ordered the government to pay them more than $35 million for its “unconscionable” purchases of huge areas of land acquired under the treaties negotiated in 1865 and at Medicine Lodge in 1867.33 But Lone Wolf v. Hitchcock had ramifications well beyond the Kiowa reservation. The decision deprived all Indians of their land base and their treaty rights; “all aspects of tribal political and property rights were now subject to radical changes at the whim of the legislative branch.” In Blue Clark’s words, “The opinion cast a whole people into despair when not only their guardian but their friends abandoned them.” The decision “enshrined one of the fundamental rules in federal-Indian law, plenary power” and gave “the American frontier juggernaut … legal justification.” The “plenary power doctrine” still stands and with it Congress’s authority to abrogate Indian treaties.34
The Supreme Court, however, also developed canons of construction guiding the interpretation of Indian treaties. Acknowledging that the United States typically had the advantage in power, literacy, and language when treaties were negotiated, the Supreme Court in US v. Winans in 1905 ruled that treaties should be interpreted as Indians would have understood them at the time and that treaties were “not a grant of rights to the Indians, but a grant of rights from them.” In other words, rights, resources, and powers that were not expressly given up in a treaty or taken by federal statute were reserved to the Indians. In Winters v. US in 1908, the same Court ruled that if ambiguities occurred in the interpretation of treaties they should be construed in favor of the tribes.35 The courts have not always followed these canons of construction but treaties, ratified by the Senate, remain the law of the land and are preserved in Native American communal memories as still-binding commitments. In a sense, those treaties—those laws—were all that Indian people had to show for the loss of 97 percent of the land base of the United States. Typically quickly broken and long forgotten by Americans, treaties have been dusted off and scrutinized by Indian tribes and their attorneys and have often to come back to bite the power that dictated them. In documented commitments made to the tribes, sometimes in perpetuity, they inscribe Indian rights and provide the moral and legal leverage to assert those rights in modern America. Many tribes have upheld their treaties as sacred texts, even if the United States has not. In Federal Power Commission v. Tuscarora Indian Nation in 1960 (a case involving the taking of Indian land protected by treaty for a reservoir, in which the Supreme Court found in favor of the power commission), Justice Hugo Black wrote the dissenting opinion: “The solemn pledge of the United States to its wards is not to be construed like a money-lender’s mortgage ….Great nations, like great men, should keep their word.”36
Indian people in modern America have insisted that the United States keep its word. Damaging as treaties were, Indian people focused their anger on the breach and disregard of treaties more often than on the treaties themselves. After all, treaties recognized tribal sovereignty and established important rights; it was military action, legislation, and judicial decisions that negated that status and those rights. “The betrayal of treaty promises has in this generation created a greater feeling of unity among Indian people than any other subject,” Vine Deloria, Jr., wrote in Custer Died for Your Sins in 1969.37 The American Indian Movement (AIM) regularly invoked treaties in its campaigns. The Trail of Broken Treaties, a march on Washington, D.C., organized by AIM in 1972, demanded observance of past treaty commitments and restoration of constitutional treaty making as essential components of a “manifesto for construction of an Indian future in America.”38 AIM holdouts at the siege of Wounded Knee in 1973 demanded the boundaries of the Oglala Nation be restored according to those guaranteed by the 1868 Treaty of Fort Laramie. Indians and their attorneys, often with the support of the Native American Rights Fund founded in 1970, reached back into history and invoked treaties that were supposed to guarantee and protect their rights but that were often ignored in days when Indians had no voice in the courts.
In the new social and political climate of reform created by the upheavals of the 1960s and
1970s, judicial opinion was more sympathetic to Justice Black’s notion that the nation should live up to its treaty commitments. Treaties that dispossessed Indian people in the eighteenth and nineteenth centuries often became keys to Indian hope and sovereignty in the twentieth and twenty-first centuries. As early as 1959, in Williams v. Lee, a case that the legal scholar Charles Wilkinson regards as opening the modern era of federal Indian law, the Supreme Court held that the Navajos’ treaty in 1868 protected the tribe’s authority over internal issues and ruled that a non-Indian’s suit to collect a debt incurred by an Indian on the reservation fell under the exclusive jurisdiction of the tribal courts.39 In subsequent cases (Warren Trading Post Co. v. Arizona Tax Commission in 1965 and McClanahan v. Arizona Tax Commission in 1973) the Supreme Court turned again to the 1868 treaty and ruled that the state could not collect taxes from non-Indian businesses on the reservation or from Indians whose incomes were derived from reservation sources.
In the 1960s and 1970s, Northwest Coast Indians began to reassert their fishing rights that had been guaranteed in the treaties with Isaac Stevens in the mid-1850s by staging a series of “fish-ins.” Overfishing, pollution, dam building, and the destruction of habitat had steadily depleted salmon runs and many non-Indian fishermen reacted angrily, and sometimes violently, to what they saw as an Indian threat to a declining resource. The issue went to US District Court. Reviewing the treaties after almost 120 years, Judge George Boldt noted in his opinion that “the treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.” Boldt found in favor of the Indians, interpreting “fish in common” to mean “take an equal share” of the salmon and steelhead harvest. “Because the right of each Treaty Tribe to take anadromous fish arises from a treaty with the United States,” wrote Boldt, “that right is preserved and protected under the supreme law of the land, does not depend on State law, is distinct from rights or privileges held by others, and may not be qualified by any action of the State.” The decision sparked a virulent racist response from commercial and sports fishermen and met stiff resistance in Washington State but was upheld on review by the US Supreme Court in 1979.40 Great Lakes tribes have likewise invoked nineteenth-century treaties to secure their rights to hunt, fish, and gather wild rice. In 1983 the US Court of Appeals for the Seventh Circuit upheld the claims of Wisconsin Ojibwes that the treaties that had been signed guaranteed their rights to continue hunting, fishing, and gathering in the areas ceded by those treaties. The decision generated a backlash among local fishermen, and there was racial violence every spring during spearfishing season during the 1980s as Indians attempted to exercise their rights. In 1999 the Supreme Court ruled in a 5–4 majority that the Mille Lacs band of Ojibwe in Minnesota retained hunting, fishing, and gathering rights on lands it had ceded to the federal government in the treaty of 1837. No subsequent action by the federal government had expressly extinguished those rights. Anger and tensions over treaty rights remained high in that state, too.41
The Sioux never accepted the loss of the Black Hills.42 In 1923 they filed suit with the US Court of Claims, demanding compensation. The Court of Claims dragged its feet before dismissing the claim in 1942, and the US Supreme Court refused to review the decision. The Sioux tried again with the Indian Claims Commission but the commission dismissed the case in 1954 on the grounds that the claim had already been denied. The Sioux then fired their lawyer and had their claim reinstated on the basis that they had been represented by “inadequate counsel.” In 1974 the Indian Claims Commission decided that the government had taken the land in violation of the Fifth Amendment and had not paid just compensation; the commission awarded the Sioux $17.5 million plus interest. The government appealed, and the Court of Claims reversed the decision on the basis of res judicata, stating that the claim had already been litigated and decided back in 1942. But the court acknowledged “a more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history,” and this opened the door for the Sioux to seek compensation on the grounds of dishonorable dealings.43 In 1978 Congress passed an act enabling the Court of Claims to rehear the case. The Court of Claims found that the United States had taken the Black Hills unconstitutionally and reinstated the $17.5 million award, plus 5 percent interest, for a total of $122.5 million. The Justice Department appealed the decision, and finally, in 1980—fifty-seven years after the Sioux first brought suit—the Supreme Court heard the Black Hills case. It found that the annexation act of 1877 constituted “a taking of tribal property which had been set aside by the treaty of Fort Laramie for the Sioux’s exclusive occupation” and upheld the award. Having won their long-sought victory, the Sioux turned down the money. They remained adamant that the Black Hills must be returned. The award remains uncollected and with accumulated interest now stands at more than $1 billion.
In Maine, Penobscot and Passamaquoddy Indians brought suit for the return of about two-thirds of the state’s land to the tribes. The Indian Trade and Intercourse Act of 1790 had declared that transfers of Indian land were invalid unless they had the approval of Congress. Massachusetts and, after it became a state in 1820, Maine continued to make treaties with the Indians but none of the land sales that occurred after 1790 were submitted for approval. If the United States were to respect its own laws, the Indians believed they had a watertight case. In 1980 President Jimmy Carter signed the Maine Indian Claims Settlement Act, paying the Indians $81.5 million in compensation for lands taken in contravention of the 1790 law.
After the legal victories of the 1970s and early 1980s, a more conservative Supreme Court began to reverse the trend of rulings on Indian rights and by the turn of the millennium seemed to be making a sustained assault on tribal sovereignty.44 Nevertheless, Indian treaties remain the law of the land, and longtime scholar of Indian law Charles Wilkinson believes these old laws “emanate a kind of morality profoundly rare in our jurisprudence.” It goes beyond guilt or obligation. “Real promises were made … and the Senate of the United States approved them, making them real laws. My sense is that most judges cannot shake that. Their training, their experience, and finally, their humanity—all of the things that blend into the rule of law—brought them up short when it came to signing opinions that would have obliterated those promises.”45
Long after they were negotiated and signed, despite a sordid record of broken promises and despite being interpreted as strictly legal documents rather than as sacred pledges made by one people to another, treaties, resurrected and reaffirmed, could be a means for Indians to preserve themselves as a people.46 In the Indian way, treaties were not made to be broken; they had to be maintained and renewed, by repeatedly revisiting and honoring the agreement, exchanging gifts, and rebuilding trust and friendship. Treaties that functioned as instruments of colonialism can also be the means of restoring respectful relations between the United States and the Indian nations within its borders. More than thirty years ago, legal scholars Russell Barsh and James Youngblood Henderson called for “treaty federalism”—incorporating tribes into the federal system on the basis of treaty compacts. “The significance of treaties,” they wrote, “lies not in their specific promises of so many blacksmiths, or so many schoolhouses, which have little contemporary relevance, nor in the proprietary arrangements for boundaries, fishing rights, and the like, which retain great economic value and are responsible for most recent treaty-rights litigation. Treaties are a form of political recognition and a measurement of the consensual distribution of powers between tribes and the United States.”47 When Congress ended treaty making and then acted as if it had plenary power in its rel
ations with Indian tribes (rather than simply the power to conduct those relations, which is what the commerce clause of the Constitution actually bestows), the United States rejected bilateral relations with Indian tribes and abandoned “the fundamental principle that our national government is one of limited powers.” Restoring respectful bilateral relations, argues Houma legal scholar N. Bruce Duthu, “would require a return to treaty-making, the only constitutionally sanctioned mechanism by which the federal government is empowered to engage in relations with Indian tribes.” That would not entail returning to nineteenth-century-style treaty making with individual tribes but could take the form of a convention, a kind of “master treaty” that would help establish “a firmer foundation for respectful coexistence” among the nation’s three sovereigns—the United States, the states, and the tribes.48
Treaty rights, law professor Rebecca Tsosie points out, carry moral as well as legal obligations. The federal government may have or claim the legal right to abrogate a treaty, but it has a moral obligation to act in good faith to racially and culturally distinct groups that have been unjustly treated. For Native peoples, the discourse of treaty rights is essentially about “the need to assert, maintain, and even demand recognition for tribal sovereignty.” The discourse of treaty rights involves calls for a recognition of the history of conquest and colonialism and a recognition of tribal sovereignty. “The treaties between the United States and Indian nations exemplify the commitment to tribalism and group-based separatism that Indian nations look to today in their efforts to gain recognition for their rights to self-determination.”49
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