Number 12 TREATIES: A SOURCE BOOK Frederick E. Hoxie Production of this sourcebook was supported in part by a grant from the National Endowment for the Humanities TABLE OF CONTENTS P.WT ONE. WHY TREATIES?: AN INTRODUCTION TO INDIAN TREATIES AND THE HISTORY OF TREATYMAKING PART TWO. TWO TREATIES AS DOCUMENTS FOR CLASSROOM USE PART THREE. A COMPARATIVE PERSPECTIVE: THE CASE OF NEW ZEALAND . '. PART ONE. KHY TREATIES? AN INTRODUCTION TO INDIAN TREATIES AND THE HISTORY OF TREATYMAKING For several years in the mid-1980s, it was an annual ritual. Members of Ojibwa communities in northern Wisconsin set out to fish in barely ice-free waters of the region's lakes. They did this because treaties their ancestors neqociated with the united States in the early nineteenth century stipulated that they could continue to harvest resources at their customary hunting and fishinq sites even chouuh they xould henceforth live on circurnscribea lands called reservations. When they arrived at public boat landinas, the Indians were net by groups of angry whites who picketed the lake shore, chanted slogans and declared to anyone xithin earsnot that an old treaty should not exempt people from obeying srate fishing laws. As the drama unfolded each year, other players inevitably appeared: local politicians (both Indian and white) who hoped to lead their constituents to victory, officials of the Department of Natural Resources who cast themselves as the defenders of compromise, support groups from nearby cities who both defended the Indian fishing parties and augmented the crowds of lakeside picketers and--the final mark that something important was going on--television crews from Milwaukee, Chicago and New York. Indian leaders stated their case simply and eloquently. Treaties (in this case agreements signed in 1837, 1842 and 1854) are "the supreme law of the land." Indians have a superior right to fish because congressional ratification of the agreements markfd them with a federal endorsement. Since the federal courts .. have upheld similar claims in Puget Sound and elsewhere, tribal lawyers pointed out, protecting Indian fishing rights should be purely a matter of law enforcement. The opposition, fueled by economic worries (the area is heavily dependent on tourism) and racial hatred, was equally forthright. The executive director of the Wisconsin Counties Association argued, for example, that "the exercise of treaty rights is not in tune with contemporary society.u1 Assisted by other groups witn names like Stop Treaty Abuse and the Citizens Equal Rights Alliance, the counties associa~ionp ointed out that times have changed: tribal economies are no longer reliant on fishing as they were in the nineteenth century, and besides, tribal communities are no longer even llIndianlble cause they contain many people of mixed ancestry. -he treaties were written for another era, these opponents declared: it is time to "modernizeIt the old rules. Luckily--miraculously, really--nc one was killed in these face-offs which reached their peak each ~pril. They were frightening events which brought to mind the school desegregation crisis in Boston in the 1 9 7 0 ~t~h e open housing mzrches in Chicago in the 1960s and earlier confrontations between federal authority and segregationistr in the Deep South. And as with these other cases involving Blacks, the well-publicized confrontations in wisconsin nave been repeated in a variety of settings across the united States. The state of washington, for .' . exampie, engaged an arrav of tribes in a decades-long struggle over Salmon runs in Puget Sound. There, as in Piisconsin, a nineteenth century treacy guarantee was upheld in federal court, state officiais and local fishing interests fought it and an uneasy peace was reched after years of confrontation. The state of \qyoming has recently been obsessed with yet another sacred western resource--~ater--~Jhicht reaties granted the ~ndians of the wind River ~eservation but which i~hite farmers have grown accus~omed to usinq. In Montana, ;;here the issue is coal, the sides are a little differenr: Indians want to mine it and whites have opposed them on environaencal grounds. The tribes have cited their treaties to defend their right to make this choice. In each of these cases--and in dozens of others around the country--Indians and their opponents have quarreled over the idea that tribal members have special prerogatives under American law. Native Americans claim that their property is in some way sovereiqn. Indian authority within their treaty-recognized domain is, to use the dictionary definitions of sovereign, "supreme, paramount, independent." Areas of tribal jurisdiction, they argue, resemble sovereiqn states. This argument lies at the heart of contemporary Indian political life. It sets ~ative Americans apart from other ethnic groups who struggle for civil rights and fair access to national legal institutions because it asserts that tribes are more than business corporations or associations of like-minded individuals. Tribal communities maintain that their qovernmens are similar to national states. The claim of 1ndian sovereignty as a part of contemporary . i American political life was first made in the "Declaration of Purpose1I adopted at a national convention of Native Americans held in Chicago in 1961. Drafted by the Indian anthropologist DtArcy McNickle, this manifesto asserted that: When Indians speak of the continent they yielded, =hey are not referring only to the loss of some millions of acres in real estate. They have in mind that the land supported a universe of things they knew, valued, and loved. With that continent gone, except for tne few poor parcels they still retain, the as is of life is precariously held, but they mean to hold the scraps and parcels as earnestly as any small nation or ethnic group was ever determined to hold to identity and survival. 2 For Indians, the documents that ultimately sec their areas of jurisdiction apart from other tracts of land, that make their "scraps and parcels" different from ethnic neighborhoods or racially hornoaeneous counties, are their treaties. Despite the fact that these agreements nay have been forced on defeated people or written in alien languages, they were negotiated with people who were considered legal equals at the time, signed and approved by authorized commissioners whose mandate came from the president, and ratified in accordance with rules established by the U. S. constitution. The 370-odd treaties negotiated with Indian nacio~sa re thus a powerful source of cultural prlde and political power. These documents both spur on modern zribal leaders and provoke sharp resistance from those who oppose them. The existence of these treaties also r3ises a series of difficult historical questions. First, -dny did the United States choose this form of relationship with the indigenous peoples of North America? The Canadian government negotiated a comprable number of treaties xith that country's aboriginal peoples, but it made clear ihrou~hout the process that all sovereignty resided with the zentr31 government. (For much of its history the Canadian (Jovernment irislsted that lcs aureements with Indian people were actually land sales. Officials there referred to their treaties as "treaties and surrenders. Mexico and the other Latin If) American countries have no treaties with tribal groups. The government of New Zealand signed one treaty with Maori leaders; the Australians signed none. Second, ;hy did the U.S. make so many treaties? Assuming some practical reason for treatymaking in the first days of the republic, irhv did the American government maintain the practice after the balance of power had shifted so strongly in its favor? Again, the New Zealanders signed one treaty in 1840 and then tried to forget about it. Third, why has the American government bothered to enforce these trearies, particularly in recent years? It is remarkable that a society of people who can't remember ~immyC arter would treat these obscure documents with such reverence. We have forgotten Sunday closing laws, we ignore the doctrine of state's rights,, why do we remember Indian treaties? Finally, how can we reconcile the history of the constitution with the persistence of treatymaking? Despite the sympathy one might feel for struggling tribes like the Wisconsin Ojibwes, the boat landing protestors have a point: why should one group of people be exempt from laws passeed by a deomocratically- elected legislature? Furthermore, the constitutional history of the United States is largely the story of the expansion of individual rights, not only in the guarantees of the Bill of Rights, but in the extension of citizenship to slaves, women and 18 year olds. Treaties appear to privilege one group over another, thereby undermining equal citizenship. How dc treaty rights square with the constitution's defense of equality? How is the enforcement of treaties constitutional? Each of these questions deserves a full response, but the first one is fundamental. Before we can understand why treaties have persisted and how they might be squared with the doctrine of human equality, we need to understand where tney came from. Once that is established, preliminary answers to the other two questions can be pre: snted as a guide for teachers and students. Why Treaties? On March 4, 1789 in New York City, the first meeting of the United States Senate was called to order as presribed by the constitution. Because a number of members were still enroute to the capital from their homes, the Senate observed that it lacked a quorum and a motion was quickly adopted to adjourn. The Senate . .. did not achieve a quorum for over a month. On April 6, however, with a majority of members present, the Senate went to work ratifyins the eiecrion of the President, establishing the new government's various departments and setting up the legislative committee system. In the midst of its first month's work--before cabinet officers were confirmed or even the judiciary organized-- President ;iasnington sent his first executive message to the Senace. The President's firt message was a report from Secretary of . . .var Henry Knox. It contained two trearies signed by representatives of the United States and "terrain northern and northwestern tribes" at Fort Harmar on the Muskingum River in Ohio (an area ceded by the ~ritishi n 1783 but not yet formally organized into a state or federal territory). Knox and Washington recommended that the Senate consent to these treaties as the new constitution prescribed. In effect, the administration asked Conqress to equate Indian treaties with other international agreements. Everyone who read Washington's message realized that it invited a fundamental decision. The constitution did not require that Indians be dealt with by treaty. It stated only that Conqress would have the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes. The constitution did not indicate the form this It llregulationiwlo uld take. In the section on the powers of the Presidenc, it only said he could "make treaties," it did not say with whom. ., The ambiguity surrounding official relations with the Indians was deepened by the phrase "Indians not taxedv which appeared in Article I of the constitution in reference to the apportionment of seats in the House of Representatives. "Indians not taxedu were not counted for purposes of representation. This could mean that Indians were to be excluded from the government or it could mean that they were to be included, but only after they became tax-paying members of the new American society. Washington could have recon~mded that the treaties be considered contracts zr agreements and therefore be approved by resolution. He zould also have avoided the documents altogether and simply requested an appropriation to fulfill the government's obligations undertaken at Ft. Harmar. Congress would probably have gone along with either proposal and there never would have been any treaties. Why did he want treaties? First, there were practical considerations. The Indians were numerous, the British were still very muc- in evidence in the Great Lakes country (they still held Detro-z), the Spanish were firmly settled in thelr two-hundred-year-old settlements in Florida, and the American qwernment was broke. In the spring of 1789 Daniel Shays was about to be pardoned for leading the first American tax revolt. As military men Washington and Knox knew how expensive Indian wars could be. They were not eager to test the will of eastern tax payers to subsidize the expansion of distant, western settlements. Given this reality, Knox predicted