NATIVE TREATYMAKING
“Supreme Law of the Land”
(U.S. Constitution
Article VI )
Dr. Zoltan Grossman
Faculty member in Geography
and Native American Studies,
The Evergreen State College,
Olympia, Washington
http://academic.evergreen.edu/g/grossmaz
Doctrine of Discovery
America defined as Terra Nullis (Empty Land)
Native subjects of one Crown (sovereign)
Native title taken through purchase or war
Native retains rights of occupancy, land use
European doctrine of “Higher Land Use”
America as sparsely
Inhabited “virgin
wilderness” (wild)
Agriculture (sedentary)
higher than hunting/
gathering (nomadic)
Justification for taking
“unused” land
Precedents for
the “Other”
Crusades against
Muslims
Roman wars
against “Barbarians”
Burning of Wiccans
(“Witches”)
Expulsion of Moors (Arabs)
& Jews from Spain, 1492
English colonization
of Welsh, Scots, Irish
European view of “Noble Savage”
Native Americans innocent children of nature (Rousseau);
Communal ideas influenced European political thought
Parallel
with
earlier
myth of
“Wild
Man”
European/settler
imagery of Indians
as evil threat
Parallels with earlier Euro.
views of pagans/ “witches”/
Satan in the forest
“Civilizing” the “Primitive” “Savage”
English
Latin
Meaning
Civilize
Civilis
“Citify; make a citizen”
Primitive
Primitivus
“First of its kind”
Savage
Salvaticus
“Of the forest”
Binary View
Black-white view of Natives as not fully human
• Native as bad
– Dangerous savage; evil threat
• Native as good
– Noble savage; close to nature
• Native bad, but can be saved
– Conversion; assimilation
• “Pendulum” swings of federal
Indian policy, public attitudes
Spanish colonial debate
• Indians = Heathens;
best as slaves
(Sepulveda)
• Indians can be
converted
(Las Casas)
European Treaty Law
• Native nations legal “owners” of land, so acquisition
needs to be through legal contract or treaty
(Francisco De Vitoria, 1537)
• British implicitly recognize Native nationhood through
treaties; saw as “sovereignty” in European terms
• European need for single tribe and “sovereign” (king)
often centralizes Native bands and leadership
Early Treaty-making Era
(1770s-1830s)
• For land cessions,
setting boundaries
• “Civilize” Indians,
restrict white traders
• Only feds can make treaties
– Recognition of nationhood
• “Supreme Law of the Land”
– Article VI Constitution
Treaties for cessions
(Land transfers to U.S.)
• Cessions traded land for peace (prevented war)
• U.S. benefited from ceded lands & resources
• If abrogate treaties, give back land? Pay for resources?
Defining set
boundaries
1825 Treaty of
Prairie du Chien
unites bands
as nations, but to
prepare for
land cessions
Usufructuary (Use) Rights
• Tribes could not survive on reservation resources alone,
so treaties reserved use rights on ceded lands
-- Hunting, fishing, gathering
• Similar to use rights after selling private property
– Access to fruit tree, boat landings, road, etc.
• Some treaties further specified that services or payments
were to be provided to the tribe
– Unequal to land’s value
Annuities (annual payments)
Ojibwe at LaPointe, Madeline Island, WI 1852
Treaties
Treaties are agreements
between sovereign nations.
371+ treaties signed by
U.S. & Native nations to
1871, implied recognition
of sovereignty.
Only federal government
can negotiate a treaty;
State laws cannot impinge
Reserved Rights Doctrine
Treaties removed rights.
They did not grant them.
Tribes sold land to U.S.
under conditions.
Rights to control ceded
lands taken away.
Tribes retained some rights
practiced for centuries.
Canons of Construction
Accounts of treaty talks, translations often
ambiguous; Chinook jargon used for NW treaties
Treaties must be interpreted and construed as Indians
would have understood them.
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Missionnaries’
shorthand for
Chinook jargon
Early U.S. Presence
• Lewis and Clark
Astoria at Columbia mouth, 1805
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• U.S. & Britain jointly occupy
“Oregon Country,” 1818
American Fur Co. vs. Hudson Bay Co.
(“Bostons” vs. “King George’s Men”)
• Christian missionnaires
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Protestants in Walla Walla (1836-47) and
Nez Perce; Catholics in Cowlitz, 1838
Oregon Territory
• Oregon Trail, 1843
Huge influx of settlers
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• U.S. -British boundary, 1846
Set at 49 degrees; British get Vancouver I.
• Oregon Land Donation Act
Settlers promised 320 acres each, 1850
• Treaties fail, 1851-53
Washington Territory
• Gov. Isaac Stevens, 1853
Territorial Governor, BIA Superintendent,
Transcontinental Railroad planner
• Threats toward tribes to
cede land for settlers, RR
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“Haste, high pressure, and no little
chicanery on the part of the whites
was predominant throughout the
meetings from start to finish.”
--William Brown
• British, Meeker favored better
trade relations with tribes
Stevens and the Settlers
• Stevens declares ceded lands
open to settlers before treaties
made or ratified (facts on ground)
• Land had been promised to
both groups; dividing them
(Settlers 1850, Tribes 1854-55)
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• U.S. Army (Gen. Wool) saw
aggressive settlers and armed
“Volunteers” as threat to peace
Settler Colonialism
• Not just for resources, but for land
• Settle poor as social “safety valve”
• Settlers “set up” to fight indigenous peoples
Settler Colonialism Elsewhere
Whites in
Southern Africa
Protestants in Northern Ireland
Russians in Siberia
Chinese
in Tibet
Israelis in West Bank
Stevens Treaties
• 64 million acres (100,000 sq. mi.)
ceded; tribal title extinguished,
1854-55
• < 6 million acres retained by tribes
Goal to consolidate on 2-3 large reservations
• Pay purchase price over 20 years
• Supply farm tools; assumed tribes
will assimilate
Tribes retain fishing rights
“The right of taking fish at usual and accustomed grounds
and stations is further secured to said Indians,
in common with all citizens of the United States;
and of erecting temporary houses for the purpose of curing;
together with the privilege of hunting and gathering roots and
berries on open and unclaimed lands. Provided, however,
That they shall not take shell-fish from any beds staked or
cultivated by citizens.” (Point Elliot Treaty, 1855)
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Medicine Creek Treaty
• Dec. 26, 1854, Nisqually Delta
• 2.24 million acres ceded for
$32,400 (paid over 20 years)
• Nisqually, Puyallup, Squaxin
each get 1,280-acre reservations
(Nisqually put on rocky plain, not river)
Nisqually Chief Leschi
refuses to sign treaty
• Squaxin Island Reservation;
each village (inlet) had own name
Medicine Creek Treaty Tree
Point Elliot Treaty
• Jan. 1855, Mukilteo
(included Seattle, Everett, Bellingham)
Settlers move in before treaty ratification.
• Pit Muckleshoot
(upriver)
vs. Duwamish
(downriver)
by lumping
together
Sealth
Point No Point Treaty
• Jan. 1855, Hadskus
• Treaty covers Klallams,
Chimakum,
Twana (Skokomish)
Attempt to consolidate all
on Hood Canal (Skokomish);
Klallams resist to stay near
Strait of Juan de Fuca
Quinault Treaty
• July 1855, Olympia
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(Quinault, Queets, Hoh, Quileute)
• Attempt to consolidate
non-treaty peoples to
south on Quinault Res.
(Cowlitz, Chehalis, Chinook, Shoalwater)
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Treaty of Neah Bay
• Jan. 1855: Makah whaling &
sealing rights also retained
in treaty; essential for tribe
Makah whaled until
Non-Native industry
depleted whales, 1920s
• Makah lived in Neah Bay
and formerly at Ozette
Treaty of Walla Walla
June 1855:
Plateau fishing cultures
moved to reservations off
Columbia River
Yakama, Cayuse, Umatilla,
Walla Walla river bands
Attempt to consolidate all
on Yakama Reservation;
Added Umatilla, Warm Springs in OR
Kamiakum
Chief Leschi
• Refused to sign treaty because
Nisqually did not have quantity
or quality of land for survival
(“Pushed onto reservations to die”)
• Many local settlers respected
and cooperated with him
Leschi
(Nisqually/Klickitat)
• Launched war against territorial
government to force changes
Puget Sound War, 1855-56
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Nisqually, Klickitat raid
Seattle village, warship
cannon attacks Jan. 1855
Sealth refuses to join Leschi,
alerts settlers
Muckleshoots attack along
settlements along White River
Puget Sound War, 1855-56
Yakamas defeat U.S. in
Toppenish battle, Oct. 1855
Settlers Volunteers attack
Native resisters, civilians;
Gen. Wool criticizes but is removed
Settlers kill, mutilate
Peopeo Moxmox under
(white flag of truce)
Fox Island Agreement, Aug. 1856
Noncombatant agreement
responds to treaty grievances
Muckleshoots get land parcels
on White River
Squaxins get island
(but interned there)
Nisqually Reservation
• Moved to Nisqually River,
expanded to 4,700 acres
Lost 70% to Fort Lewis, 1917
Puyallup Reservation
• Expanded and moved to
Puyallup River mouth at
Commencement Bay
Lost reservation land to
railroad and settlers in
Allotment Era
Leschi
Leschi execution
• Brother Quiemuth killed
in Governor’s office
Quiemuth
• Leschi arrested for killing
of Army officer in war
• Despite widespread support
and two hung juries, executed
near Fort Steilacoom, Feb. 19, 1858
• Judges in “retrial” clear
Leschi’s name, Dec. 2004