The Relentless Business of Treaties: How Indigenous Land Became US Property

219 Pages·2018·10.681 MB·English

by  Martin Case

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Text © 2018 by Martin Case. Other materials © 2018 by the Minnesota
Historical Society. All rights reserved. No part of this book may be used or
reproduced in any manner whatsoever without written permission except
in the case of brief quotations embodied in critical articles and reviews.
For information, write to the Minnesota Historical Society Press,
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ISBN: 978-1-68134-090-6 (paper)
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You think nothing of the land, because the Great Spirit made
you with paper in one hand and pen in the other, and altho* he
made us at the same time, he did not make us like you.
Little Priest, Ho Chunk, 1828
Contents
Introduction: The Lay of the Land 3
1. Speculators 13
Territory: 1783-1800 13
Signers: A Speculative Enterprise 24
2. Traders 39
Territory: 1800-1812 39
Signers: Trade and Trust 50
3. Men of Industry 65
Territory: 1813-1829 66
Signers: The Machines 76
4. Political and Personal Boundaries 93
Territory: 1830-1838 94
Signers: Who Are Your People? 102
5. Bureaucrats 121
Territory: 1838-1848 121
Signers: Officers and Officeholders 130
6. Mythmakers 147
Territory: 1849-1858 148
Signers: Making History 157
Epilogue 173
Acknowledgments 177
Notes 181
For Further Reading 201
Index 203
The Relentless Business of Treaties
INTRODUCTION
The Lay of the Land
The American myth, like the book of Genesis, includes not one but
two creation stories. One American origin story celebrates the
foundational documents that enshrine the country's ideals. The Dec­
laration of Independence, though it was written by slaveholders and
refers to indigenous people as “savages,” expresses the ideal of equal­
ity among all people. The Constitution with its Bill of Rights, though
it originally institutionalized chattel slavery, set the rule of law that
would in theory guarantee the ideal of individual liberty. Through the
words in these documents, the United States was created in principle.
The American myth also provides a story in which six days stand out
as milestones in the United States* march of progress. On Day One, a
treaty with Great Britain ended the Revolution and the United States
was bom. Subsequent days saw the Louisiana Purchase from France,
the acquisition of Florida from Spain, the annexation of the Republic of
Texas, the Oregon Treaty that settled the US title to the Pacific North­
west, and the Treaty of Guadalupe Hidalgo, ending a war between the
United States and Mexico. Six days, six changes in colonialist regime,
six giant strides across the continent; Americans saw that it was good
and rested until Hawaii and Alaska made their later appearances.
When indigenous nations appear in this mythical version of the
past, they are presented as a temporary impediment to US expansion.
The American myth conveys a carefully constructed image of indige­
nous identity, meant to contrast a primitive social order with a supe­
rior civilization that supplanted it and relegated it to the past. Though
the myth is essentially racist and demonstrably untrue, it still shapes
public discourse in the United States, not least through the legacy of
significant Supreme Court decisions.
But beneath the American myth, the history of North America
has featured a long history of diplomacy among sovereign nations.
Treaties are an important part of that history. One result of those
agreements was the transfer of millions of acres from the control of
♦ 3
4 ♦ THE RELENTLESS BUSINESS OF TREATIES
indigenous people to that of the United States. The impact of that
transfer on indigenous nations is widely known today but less widely
understood. The treaties also played an essential role in creating and
expanding the US property system. Like the Declaration and the Con­
stitution, they are foundational documents of the United States. As
living documents, they continue to operate on the political, legal, and
social systems of North America today.
The US-Indian Treaties
As nation-to-nation agreements, the US-Indian treaties cover a full
range of diplomatic relationships, including peace accords, military
alliances, trade compacts, and—generating the most public discus­
sion today—land cessions. Indigenous people brought their own
traditions in international diplomacy to their negotiations with the
United States, including protocols and ceremonies that solemnized
their agreements. Their collective experience with diplomacy preceded
the birth of the United States. Today the most famous treaty among
indigenous nations is perhaps that of the Iroquois Confederacy, which
united neighboring nations in an enduring compact long before the
United States was created, possibly before Columbus set sail from
Europe; negotiations over trade and territory were common. Indige­
nous people made treaties with European countries 150 years before
the American Revolution. A Cherokee delegation, for instance, trav­
eled to London to negotiate a treaty in 1730.1
These treaties, even from a colonialist perspective, have carried
the weight of international law. From time to time—usually on those
Six Days of the creation myth—the United States in effect inherited
treaty obligations from other colonialist powers: Spain, France, Great
Britain, the short-lived Republic of Texas. The Louisiana Purchase, for
instance, bound the United States to abide by Spanish treaties with
indigenous nations.
Early on, the federal government reserved for itself the exclusive
power to make treaties on behalf of the American people. To be an
official, legally binding treaty from a US perspective, the agreement
had to be signed by multiple parties, ratified by the US Senate, and
proclaimed (formally announced) by the president. Between 1778 and
1871, the United States signed about 375 official treaties with indige­
nous nations. Although states, corporations, and individuals occasion­
ally tried to reach agreements on their own with indigenous nations,
INTRODUCTION: THE LAY OF THE LAND ♦ 5
usually in order to acquire land, as a general rule only federally negoti­
ated treaties carry the weight of law.
The accurate recognition of US-Indian treaties as agreements
among sovereign nations carries profound consequences. Along with
the Constitution, international treaties—including those with indige­
nous nations—are the foundation of the US legal system. As Article 6
of the Constitution itself says, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Trea­
ties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land.”
American public discourse about the treaties is often hampered by
a persistent misperception that the United States granted rights to
indigenous people through treaty making, with the implication that
those rights can be unilaterally taken away by the federal government.
But indigenous “treaty rights” are not a product of the US political
and legal system. They spring from widely diverse traditional social
structures, national histories, and relationships to land that evolved
long before the creation of the United States. When negotiating land
cession treaties, indigenous people often successfully retained certain
rights that they had always enjoyed as sovereign nations: the right to
hunt and fish even on the land they ceded, for instance. Indigenous
nations have skillfully maintained these rights ever since, by engaging
in the legal and political systems of the nation that acquired much of
their land. In contemporary American society, the assertion of treaty
rights is an expression of enduring national sovereignty that was never
given up by indigenous people.
The idea that rights might originate outside the Constitution has
proven to be a difficult one for many Americans to grasp, and indige­
nous sovereignty has been dismissed in public discourse on many
levels. Politicians and some scholars have asked long after the fact
whether the treaties were actually valid, legal documents. The treaties
have been described, for instance, as “political anomalies.” The Ameri­
can myth has made from the US-Indian treaties an example of political
inequality, famous for removing the Indian from the United States. As
the story goes, this removal was justified because Americans could use
natural resources more effectively than indigenous societies did. So
the American system unleashed a great tide of material progress that
continues to wash over the world to this day. The United States distrib­
uted to settlers the cheap land that indigenous people had never fully
exploited through, for example, the Homestead Act and the Oklahoma