NATIVE TREATYMAKINGNATIVE TREATYMAKING

““Supreme Law of the Land” Supreme Law of the Land” (U.S. Constitution (U.S. Constitution

Article VI )Article VI )

Dr. Zoltan GrossmanDr. Zoltan GrossmanFaculty member in GeographyFaculty member in Geographyand Native American Studies,and Native American Studies,The Evergreen State College, The Evergreen State College,

Olympia, WashingtonOlympia, Washingtonhttp://academic.evergreen.edu/g/grossmaz

America defined asAmerica defined as Terra Nullis Terra Nullis (Empty Land) (Empty Land)

Native subjects of one Crown (sovereign)Native subjects of one Crown (sovereign)

Native title taken through purchase or warNative title taken through purchase or war

Native retains rights of occupancy, land useNative retains rights of occupancy, land use

Doctrine of DiscoveryDoctrine of Discovery

America as sparsely

Inhabited “virgin

wilderness” (wild)

Agriculture (sedentary)

higher than hunting/

gathering (nomadic)

Justification for taking

“unused” land

European doctrine of “Higher Land Use”European doctrine of “Higher Land Use”

Precedents forPrecedents forthe “Other”the “Other”

Roman wars against “Barbarians”

Crusades againstMuslims

Burning of Wiccans (“Witches”)

Expulsion of Moors (Arabs) & Jews from Spain, 1492

English colonization of Welsh, Scots, Irish

European view of “Noble Savage” European view of “Noble Savage” Native Americans innocent children of nature (Rousseau);Native Americans innocent children of nature (Rousseau);

Communal ideas influenced European political thoughtCommunal ideas influenced European political thought

ParallelParallelwithwith

earlierearliermyth ofmyth of““WildWild

Man”Man”

European/settlerEuropean/settlerimagery of Indiansimagery of Indians

as evil threatas evil threat

Parallels with earlier Euro.Parallels with earlier Euro.views of pagans/ “witches”/views of pagans/ “witches”/

Satan in the forestSatan in the forest

““Civilizing” the “Primitive” “Savage” 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 ViewBinary ViewBlack-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 debateSpanish colonial debate

• Indians = Heathens;

best as slaves

(Sepulveda)

• Indians can be

converted

(Las Casas)

European Treaty Law 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 Early Treaty-making Era (1770s-1830s)(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 Treaties for cessions (Land transfers to U.S.)(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 setDefining setboundariesboundaries

1825 Treaty of Prairie du Chien

unites bands as nations, but to

prepare forland cessions

Usufructuary (Use) RightsUsufructuary (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)Annuities (annual payments)

Ojibwe at LaPointe, Madeline Island, WI 1852Ojibwe at LaPointe, Madeline Island, WI 1852

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

TreatiesTreaties

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.

Reserved Rights DoctrineReserved Rights Doctrine

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.

Canons of ConstructionCanons of Construction

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Missionnaries’shorthand forChinook jargon

Early U.S. Presence Early U.S. Presence

• Lewis and Clark Astoria at Columbia mouth, 1805

• U.S. & Britain jointly occupy

“Oregon Country,” 1818 American Fur Co. vs. Hudson Bay Co.

(“Bostons” vs. “King George’s Men”)

• Christian missionnaires Protestants in Walla Walla (1836-47)

and Nez Perce; Catholics in Cowlitz, 1838

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Oregon Territory Oregon Territory

• Oregon Trail, 1843 Huge influx of settlers

• 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

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Washington Territory Washington Territory • Gov. Isaac Stevens, 1853

Territorial Governor, BIA Superintendent,

Transcontinental Railroad planner

• Threats toward tribes to

cede land for settlers, RR

“Haste, high pressure, and no littlechicanery on the part of the whites was predominant throughout themeetings from start to finish.”

--William Brown

• British, Meeker favored better

trade relations with tribes

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Stevens and the Settlers 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)

• U.S. Army (Gen. Wool) saw aggressive settlers and armed “Volunteers” as threat to peace

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Settler ColonialismSettler Colonialism

• Not just for resources, but for land

• Settle poor as social “safety valve”

• Settlers “set up” to fight indigenous peoples

Settler Colonialism ElsewhereSettler Colonialism Elsewhere

Protestants in Northern Ireland

Whites inSouthern Africa

Chinese in Tibet

Israelis in West BankRussians in Siberia

Stevens Treaties 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 rightsTribes 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 TreatyMedicine 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)

• Squaxin Island Reservation; each village (inlet) had own

name

Nisqually Chief Leschirefuses to sign treaty

Medicine Creek Treaty TreeMedicine Creek Treaty Tree

Point Elliot TreatyPoint 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 TreatyPoint No Point Treaty• Jan. 1855, Hadskus

• Treaty covers Klallams, Chimakum, Twana (Skokomish)

Attempt to consolidate allon Hood Canal (Skokomish);Klallams resist to stay nearStrait of Juan de Fuca

Quinault TreatyQuinault Treaty

• July 1855, Olympia (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 BayTreaty 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 WallaTreaty of Walla Walla

Kamiakum

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

Chief LeschiChief 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

• Launched war against territorial

government to force changes

Leschi(Nisqually/Klickitat)

Puget Sound War, 1855-56Puget Sound War, 1855-56

Nisqually, Klickitat raidSeattle village, warship cannon attacks Jan. 1855

Sealth refuses to join Leschi,alerts settlers

Muckleshoots attack alongsettlements along White River

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Puget Sound War, 1855-56Puget Sound War, 1855-56

Yakamas defeat U.S. inToppenish battle, Oct. 1855

Settlers Volunteers attackNative resisters, civilians;Gen. Wool criticizes but is removed

Settlers kill, mutilate Peopeo Moxmox under(white flag of truce)

Fox Island Agreement, Aug. 1856Fox Island Agreement, Aug. 1856

Noncombatant agreementresponds to treaty grievances

Muckleshoots get land parcels on White River

Squaxins get island

(but interned there)

Nisqually ReservationNisqually Reservation

• Moved to Nisqually River, expanded to 4,700 acres

Lost 70% to Fort Lewis, 1917

Puyallup ReservationPuyallup Reservation• Expanded and moved to Puyallup River mouth at Commencement Bay

Lost reservation land to railroad and settlers in Allotment Era

Leschi executionLeschi execution

• Brother Quiemuth killed in Governor’s office

• 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

Quiemuth

Leschi