One of the ways that the United States (as with Canada, England, France, Spain, and others in the "New World") chose to deal with the indigenous peoples it encountered was through the "treaty." It was an official, "legal" way to conduct relations that didn't require armed conflict (another way they often chose). The treaty was a diplomatic method with which to come to an "agreement" between the two parties (the state or the government/nation and one or more Indian tribes/bands).
Of course when making a treaty, one party tends to try to get the advantage and this was exactly what the United States worked for in every instance. Reading over treaties made with the American Indians, one gets the impression that the United States does not consider itself making its so-called binding agreement ("all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land": US Constitution Article VI) with an equal or even relative peer group, but with, essentially, childrenthe paternalistic language in respect to the Indians was rhetorically common throughout legislation, political speech, and other public discourse (time and time again the president of the United States is referred to and the Indians encouraged to refer to him as the "Great Father).
Language suggesting political or social (or cultural) equality on some level, while not uncommon, when it does appear, gives one the sense of patronization for the sake of convention and as a means to give the Indians the impression they are equal, the agreement is fair, and as a sort of "flattery" to entice the signing (not dissimilar to the often obligatory exchange of giftsusually trinkets on the American sidewhich was an integral part of the Indian way of making negotiations but held little meaning outside of "what needed to be done" to get it signed by the US).
While most treaties discuss and work for peace and goodwill between those signing them (at least as a temporary measure), they also served as a means of control over the Indians. One exercise of this control was through regulation (often unilateral) of trade, ability to build roads (later forts and railroads) on Indian land and the free rein to use those improvements (and stipulations as to how the Indians could or could not), and similar. The leverage used to get Indians to sign was usually peace with promises of money and/or goods as payment and/or yearly annuities (this was in addition to the arsenal of tried and true methods such as getting the Indians drunk, changing the treaty, giving incorrect interpretation, getting people to sign that had no actual authority to do so, and outright bribery).
Article I, Section 8 of the Constitution reserves the right of Congress to "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Even going further, treaties like the first with the Cherokee (1785) claim "sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." This led to a level of economic control (the suggestion of political and/or social control also seems notable) over the Indians and was part of the attempt to "civilize" them by making them into " capitalists" who could take part in the US economy (later attempts to "civilize" included trying to make them own private property and farmas these things are "central" to being part of Western civilization). It was also a way in which to get them into debtdebt that could be paid off through land cession.
A second, possibly more important, exercise of control was through land "agreements." The tribes would have their boundaries (previously a fairly plastic concept that could change through conflict, population growth, migration) fixed by the government. The government would give them promises of sovereigntyunsually limited (or nonexistent): as in being "under the protection of the United States of America." Also promises of keeping "intrusions" onto their land were often madeand agreements to exchange prisoners and slaves. That people were often encouraged to intrude (Georgia being a prime case where they gave away Cherokee land in a lottery and "allowed" citizens to just take over land even if it had families living on it). In essence, these early agreements made proto-reservations that not only let the Indians feel they had claim to the land (which they'd already had) but that they were safe in maintaining that land, safe from trespassers.
As important as the land "given" or "assigned" (or "allowed") to the Indians was the land that the government managed to take. Land cessions are probably as common to treaties as talk of peace. Offering peace and giving money and gifts, the government would slice up the territory bit by bit, the vacuum created by the Indians' loss being quickly filled with settlers (sometimes before the agreements were made, as noted above). A subcategory of that is, of course, agreements for the Indians to physically move off the land to go elsewhere.
This is reflected by the infamous Indian Removal Act, which, while not a treaty, is the logical extension of the cession and boundary agreements (it was often "legally" enforced through treaty as in the case of the Cherokee and the Treaty of New Echota). Once the Indians "agreed" to move or were made to move, treaties would be sent out to get them to agree to the terms of their new location, the boundaries, regulation of trade and other economic, political, and social things. This would eventually be followed by further "removal" through cession and other means.
While the treaty would use legalistic and seemingly objective language, sometimes one can find the meaning and method put in plain, even blunt terms. Andrew Jackson described the methodology as such: "we addressed ourselves feelingly to the predominant and governing passion of all Indian tribes, i.e., their avarice or fear" (qtd. in Zinn). Besides fear of possible war (and Jackson's path of carnage and destruction left behind during the Creek War informed that fear), one of the key fears was losing their land. It was often felt that by giving a little or moving a little, they would be safe and secure from further loss. Of course, they were invariably wrong. Between 1814 and 1824, treaties with the Indians of the southeast managed to "acquire" "three-fourths of Alabama and Florida, one-third of Tennessee, one-fifth of Georgia and Mississippi, and parts of Kentucky and North Carolina" (Zinn).
Another person to put it in easy to understand terms was Governor George Gilmer of Georgia (1829-1831the time during which the state was starting to actively try to dislodge the Cherokee) who makes it plain what he sees the treaty functioning as: they were simply " expedients by which ignorant, intractable, and savage people were induced without bloodshed to yield up what civilized people had the right to possess by virtue of that command of the Creator delivered to man upon his formationbe fruitful, multiply, and replenish the earth, and subdue it" (qtd. in Wilson). And the Indian and his land were both systematically "subdued" by treaty.
In the mid nineteenth century, official reservations were being set up and the Indians made to agree to the parceling of the land and accept "relocation" to them (not without a history of resistance, often violent). As with the earlier treaties, future ones then began to carve up the reservations (already tending to be on unwanted land for the most part). Established with the 1851 and 1868 Treaties of Fort Laramie, the land that the Great Sioux Reservation consisted of was not only cut by well over half, it was divided into three separate areas of two reservations each by 1889 (not always by treaty as shown below).
In 1871, the government decided that they would no longer use treaties to deal with the Indians and following that, it exercised control without even a "ceremonial" approval by the people, themselves. This did not mean they couldn't make "agreements" with the Indians or deal with them through "executive order," both of which they did.
The first and the last
The first treaty made with the American Indians was in 1621 with the sachem Massasoit. It is quite simple and plain (full text here). In fact, it seems to be less patronizing and asks for no land. It is six articles of reciprocating promises concerning peace, allegiance (two-sided), and not stealing. (On the other hand, a later consequence of the "peace" led to the "permission" for the English to occupy 12,000 acres of Indian land.) There is record that the Cherokee may have signed a treaty as far back as 1684 and definitely signed one with South Carolina in 1721.
The first official Indian treaty under the US government took place in 1778 with the Delaware Indians (Lenni Lanape). It begins by stating that "all offences or acts of hostilities" be "mutually forgiven, and buried in the depth of oblivion, never more to be had in remembrance." It then claims "perpetual peace and friendship" (a very common statement found in the treaties). Next it gets to what is, perhaps, the main reason for the treaty: aid in the war with England. It is desired that the tribe help in the fighting as best it can (to provide a "number of their best and most expert warriors as they can spare, consistent with their own safety, and act in concert with them") and for it to allow the Americans safe passage through the territory to enable them to better carry out the war.
Article VI is telling. It states that the "enemies of the United States" have with "every artifice in their power" attempted to get the Indians to believe the US means to "extirpate the Indians and take possession of their country." Calling this a "false suggestion," the treaty promises a "guarantee to the aforesaid nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner, as it hath been bounded by former treaties, as long as they the said Delaware nation shall abide by, and hold fast the chain of friendship now entered into."
This was broken rather quickly. The tribe was asked to help participate in an attack on Detroit. Doing so would mean the tribe would have to attack British allies with whom they were at peace. Attempting to maintain the spirit of the treaty, one of the chiefs agreed to guide soldiers to a location that was proposed for a fort (one of the parts of the treaty was allowing for a fort to be built on Lanape land). During the trip, he was murdered and the tribe told that he'd died of small pox. It seems the United States had no compulsion to adhere to any reciprocation of Article VI. This open act of hostility caused many Lanape to side with the British and fight against the Americans.
The final treaty was signed 13 August 1868 with the Nez Percé (rather an uninteresting treaty, to be honest). It is mainly some amendments to an earlier treaty (1863). It deals with reservation land being broken up into allotments. It foreshadows the 1887 General Allotment Act or " Dawes Act" whereby, reservation land, held by the tribe was broken into parcels of private property for Indian families. It was another attempt to "civilize" the Indian and break down the unity and structure of the tribe. Also, timber was to be protected and money set aside and held in trust for education.
Why did the government stop making treaties?
The obvious answer is that it was in their own self-interest to be able to make decisions without dealing with the other party. It was also a growing feeling among US citizens that the country shouldn't deal with the Indians that way. But the" justification"?
In 1869, newly appointed Commissioner of Indian Affairs, Ely S. Parker (or Donehogawa ironically, he was an Indian) stated in the annual report that
the Indian tribes of the United States are not sovereign nations, capable of making treaties, as none of them have an organized government of such inherent strength as would secure a faithful obedience of its people in the observance of compacts of this character. They are held to be wards of the government, and the only title the law concedes to the lands they occupy or claim is a mere possessory one. But because treaties have been made with them, generally for the extinguishment of their supposed title to land inhabited by them, or over which they roam, they have become falsely impressed with the notion of national independence. It is time that this idea should be dispelled, and all the government cease the cruel farce of thus dealing with its helpless and ignorant wards.... (qtd. in Wilson)
That they are not "sovereign nations" is technically accurate, but according to a Supreme Court ruling in the 1830s
the Cherokee Nation then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with acts of Congress.
Apparently it was irrelevant that the Supreme Court felt them able to make treaties and own its own property. In fact, the Indian Trade and Intercourse Act(s) of 1790 and later expressly stated that
no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution
Additionally, this is still
part of the US Code (Title 25, Chapter 5, Section 177) in almost identical
language (current version above).
Nor did it seem to matter that the Cherokee (and others, in particular the Chickasaw, Choctaw, and Creek) did indeed have a rather organized government. The Cherokee had a constitution, a congress, and a judicial system, as well as farms, orchards, plantations and a newspaper. Parker's report suggests willful ignorance of the facts and further patronization (note the term "ward" and the suggestion that they are "helpless" and "ignorant": children). It seems almost too obvious to note that the "organized government" of the United States had never managed to "secure a faithful obedience of its people in the observance of compacts of this nature." That of course was also ignored.
The United States has never not broken one of its treaties with the Indians.
(Sources: Angie Debo A History of the Indians of the United States 1970; Carl Waldman Atlas of the North American Indian rev. ed. 2000; James Wilson The Earth Shall Weep: the history of Native Americans 1998; Howard Zinn A People's History of the United States 1980, 1999: twentieth anniversary edition; www.dickshovel.com; www4.law.cornell.edu/uscode; the collected treaties between the United States and the American Indians as well as laws up to 1913 can be found at http://digital.library.okstate.edu/kappler/index.htm; additionally a substantial amount of reading on the subject over the last two years)