Broken Treaties

The United States has a long history in which it abused its relative power over other populations. Its relations with Native Americans were no different in this regard. The United States frequently signed and committed itself to treaties with Native Americans that they repeatedly broke, a practice that has been present in American policy since its inception. For instance under the removal act of 1830 the US government bought land from Native Americans east of the Mississippi and offered to give them land in the west that would be “theirs forever.” However, this treaty was not honored by the US government as white travelers, and traders were allowed to settle in this land that had had recently been given to Native Americans. The American government also participated in signing treaties that had no real legal basis. For instance, in 1874 the US government signed an agreement to purchase the gold-rich Black Hills of South Dakota. This agreement was signed with only a few individual members of the Sioux tribe, a clear violation of the 1869 Sioux treaty which required the approval of three-fourths of men of the tribe. Congress responded by passing a law ruling that the agreement overrode the treaty. Even years after these broken treaties, the US government still found ways to short-change and not fulfill previous promises to Native American tribes. In two crucial court decisions in 1902 and 1903, the Supreme Court held that Congress has the power to modify or terminate Native American treaties without the Native Americans’ consent.

All in the name of greed and expansion, Native Americans were taken advantage of and systematically deprived of their lands and ability to govern themselves. The decision of the US government to not abide by its word in treaties that it established has left an intense feeling of mistrust between Native Americans and the US. Additionally Native Americans have been economically and socially disadvantaged by their displacement and frequent relocation. In 1972, a significant number of tribes from all over the United States organized a movement know as the Trail of Broken Treaties to generate media coverage and provide a useful medium to articulate the goals and changes they wanted to see occur in federal Indian policy. While the government took steps to address some of the issues brought up by the tribes, there is still a long way to go before the US government can even begin to earn the trust of these exploited groups. In the mean time sadly, Native Americans will continue to suffer from Americas previous policies of lies, deceit and abuse.

Broken Treaties vs. No Treaty At All

As you have already learned, broken treaties are a huge problem for Native Americans today. However, something you might not know is that there are many Indian tribes here in the US that have no treaties at all with the federal government. Why don’t these tribe have treaties? Why should you care? Is having no treaty at all a bad thing? Read on to learn more.

Native Americans without Treaties
One of the largest groups of Native Americans without a treaty of recognition with the US are the Native Hawaiians—the native people that inhabited the State of Hawaii. Though it is undisputed that the Native Hawaiians are a native people—people that are indigenous to the land they now live on that were there before any contact with the US or European explorers—the Hawaiians are not what lawyers call arecognized tribe.

What’s so bad about being an unrecognized tribe? Despite the harm of broken promises for tribes that have treaties the US government refuses to honor, unrecognized tribes face special obstacles. For example, even if the federal government breaks its treaty promises with a tribe, a tribe that is formallyrecognized qualifies for special government programs that give the tribe money to support its tribal government, care for its tribal land, as well as fund special programs for tribal members.

Though being an unrecognized tribe does not mean that tribal members are completely cut out of federal programs—for example, Native Hawaiians often have some programs specially funded by the federal government even though they are not federally recognized—being unrecognized means that there are a lot of important programs they don’t qualify for, such as special programs to hold land in trust to preserve it for future generations of the tribe.

Why Do Old Treaties Still Matter Today?

Respect
Another aspect of this same problem is that Broken Treaties represent the government’s failure to honor and respect Indian tribes. The failure to keep a promise is symbolic of the lack of respect. As you can imagine, if you make an agreement with a friend and your friend makes all sorts of plans on the promise that you will come through on your end of the bargain, all sorts of things can go awry if you do not hold to your word. On a much more dramatic scale, this is the situation that many tribes finds themselves in today. 

Sovereignty
nother reason why broken treaties are important to Native people today is the extent to which treaties, and in all too many cases the federal government’s refusal to honor them, limit tribe’s abilities to run their internal affairs. Under many Indian treaties, the federal government promised to recognize the inherent sovereignty of Indian tribes. Inherently sovereignty is a complicated legal term. More or less, it means that the US agrees that tribes are legitimate nations that exist independently of the US government and are capable of entering into agreements and running their internal affairs without US government intervention.

Reliance
Despite hundreds of years of reliance on treaties such as these, tribes live with the fear that the government will unilaterally decide to stop honoring treaty terms. Today, Indian tribes have limited power to enforce centuries’ old agreements—tribes ultimately must depend upon the federal government’s willingness to honor its agreements, which in many cases is the same government that took the tribe away from their ancestral lands and that has maligned them for centuries. Under this regime, tribes are extremely vulnerable—if their treaties are honored, life as they know it can continue on—it not, there is little that they can do about it.

Vulnerability
Many Indian tribes are greatly impoverished, meaning that many members rely upon food stamps and other forms of assistance in order to survive. Though some tribal leaders acknowledge this harsh reality, many Native activists argue that reservation poverty —referring to the poverty Native Americans suffer on Indian reservations due to a combination of their isolated locations, the separation of tribal communities from larger communities, as well as the depressed economies around them—is in no small way linked to the government’s failures to keep its promises to Indian tribes.

More About Treaties

What is a Treaty?

Legally speaking, a treaty is a document through which two governments exchange promises and obligations, usually with the intent of forming a peace agreement. In the context of Native Americans, treaties have been entered into for a lot of reasons. For more information on what is a treaty, click here.

Why Enter Into a Treaty?

One reason was to arrange for the exchange of land, usually with the federal government taking Native land and exchanging less desirable land in the West. A second reason to enter into a treaty was to promise peaceful relations between the US government and the Indian tribe. The content of each treaty varies widely though from tribe to tribe as well as over time. To learn more about specific treaties we encourage you to check out the links below.

• Indian Treaty Rights
• Official Set of Ratified Treaties
• Complete List of Known Indian Treaties
• Treaties Organized by Year

American Treaties

The first recorded “American” treaties are those entered into the British government when the US was still a set of British colonies. That treaty, the Great Treaty of 1722 Between the Five Nations, the Mahicans, and the Colonies of New York, Virginia, and Pennsylvania was entered into in 1722. Between 1722 and 1871 the US government entered into hundreds of treaties with many, but not all, of the tribes that lived in the US.

Congress passed legislation in 1871 that banned entering into new treaties with Indian tribes going forward. That means that without special legislation, the US cannot enter into treaties. However, that same legislation states that the US shall honor all “obligations” under treaties entered into before 1871.

Indian Nation, Indian Tribes, and Countries within a Country

Are Native Americans legally American? Is there a difference between an Indian tribal government and China’s government? Are Indian reservations different countries? Why do we call Indian tribes “nations”? If Native Americans are American citizens, why does the US have “treaties” with them?

Like structural racism generally, the legal status of Native Americans in the US is incredibly complicated. This section will teach you a bit about the legal status of Native American tribes and their governments in the US.

Are Native Americans legally American?

American Citizenship–Legally speaking, all Native Americans born within the borders of the US are US citizens, just like anyone else born within the borders of the US. This was not, however, always the case. Until the 1920’s, only two-thirds of the Native Americans living in the US were American citizens. The reason for this is citizenship was not automatically given. Those with citizenship got it either through married, military service, special acts having to do with land called allotments, or special treaties and statutes. Citizenship was extended to all Native Americans by an act of Congress through the Indian Citizenship Act of 1924. Now, anyone born on US soil is a citizen of the US.

Tribal Citizenship

While Native Americans are citizens of the US they are also, in many cases, citizens of the tribe they were born into. Each tribe, much like other governments abroad, has its own rules about citizenship. In some tribes any child with one parent that is a citizen of that tribe is recognized as a tribal member and citizen. Other tribes have more rules covering citizenship. For example, some tribes limit citizenship to persons with (1) at least one parent that is an enrolled tribal member and (2) that lives on reservation land.

• Learn More About Tribal Enrollment.
• Learn More About Tribal Citizenship in the Cherokee Nation.
• Learn More About Tribal Citizenship in the Blackfeet Nation.

The Difference between Indian Tribal Governments and Other Foreign Governments

Legally speaking, Native American government are a kind of foreign government, meaning they are recognized as being separate from the US. However, this is a really complicated area of law. Under a set of muddy rules created by the Supreme Court in the 1800’s, Indian tribes are officially “domestic dependent nations.” This means that Indian tribes are technically separate from the US government, but the US government recognizes that they are “dependent” upon the US for existence.

Racist Origins of Indian Law in the US

There are a lot of problems with the rules developed by the Supreme Court. First, the rules were developed for a lot of racist reasons. For example, in Johnson v. M’Intosh Chief Justice Story stated that:

“As infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations… . . [A]s an inferior race of people without the privileges of citizens, and under the perpetual protection and pupilage of the government.”

This means that the US recognizes Indian nations as being special under US law primarily because we are obligated to take care of people that are less developed than us, much like governments have an obligation to take care of orphaned children. Given that Native Americans were in the Americas anywhere from 12,200 to 40,000 years before the British, French, and Spanish colonized the “New World” it is incredibly condescending to say that Indian tribes need us to preserve their existence.

A second wrinkle in the racist rules of the Supreme Court is that no one really understands what the Court meant when it created all these rules. Leading Indian Law scholars today are still baffled by much of what the Supreme Court ruled on decades and even hundreds of years ago. What we do know to be the law today is that Indian tribes have been legally singled out on the basis of race and given “special treatment” under the law. Special treatment, in the case of Native Americans, often works to their detriment. For a lot of complicated legal reasons, the US government can treat Native Americans differently than other racial groups, meaning in lots of cases Native Americans do not have protections against racially motivated government action that other groups would be able to sue over.

Why Do We Have Treaties with American Citizens?

It's hard to explain exactly why the US government entered into Indian treaties today. Some historians believe that when the US first started entering into treaties they thought that Native Americans would never be part of the US. We thought that we would take their land, give them new land outside of the boundaries of the US, and we would not have to deal with them again. However, driven by Manifest Destiny, the US kept pushing westward on its borders, eventually eating up all the land we “set aside” for Indian tribes.

Today this leaves us with a complicated issue at home. We entered into treaties with Indian tribes thinking that it was a way to simply get the Native Americans out of land that we wanted for White settlement. Because the US later decided it wanted the territory we gave to the Native Americans, we have had to figure out some way to live with “nations” inside of our larger nation. Today, Indian tribes are “foreign” for some purposes, and “domestic” for others. There are a complicated set of laws that order how the federal and state governments interact with the tribes, and special federal agencies that deal with Indian tribes and tribal members on the ground.