56

INDIAN TREATIES

that their right to make laws not inconsistent with the Constitution or intercourse acts should be secured.²⁷⁰

The New Echota treaty also provided (Art. 12) under certain conditions, reservations of 160 acres for those who wished to remain east of the Mississippi²⁷¹ and for settlement of claims (Art. 13) for former reservations. In addition a commission was established (Art. 17) to adjudicate these claims.²⁷²

2. Chickasaws.—Although the domain of the Chickasaw Nation was considerably restricted by the treaties of 1816²⁷³ and 1818²⁷⁴, it was not until 1830 that the subject of “removal” was given serious consideration. During the summer of that year, the President met the principal chiefs of the Chickasaw Nation and warned them that they would be compelled either to migrate to the west or to submit to the laws of the state.²⁷⁵. After several days of conference a provisional treaty²⁷⁶ was signed. However, performance was conditional upon the Chickasaws being given a home in the West on the lands of the Choctaw Nation, and as the two nations could come to no agreement the treaty remained unfulfilled.²⁷⁷ Nevertheless, white infiltration into Chickasaw land east of the Mississippi was accelerated, and the problem of removal became a pressing government problem.²⁷⁸.

On October 20, 1832,²⁷⁹ another treaty for removal was negotiated in which all of the land of the tribe east of the Mississippi

²⁷⁰ In *Cherokee Nation v. Southern Kansas Railway Co.*, 135 U. S. 641 (1890), the Supreme Court commented on this clause:

* * * By the Treaty of New Echota, 1835, the United States covered and agreed that the lands ceded to the Cherokee Nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory. And that the government would secure to that nation "the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to them; or such persons as have connected themselves with them;"

* * * But neither these nor any previous treaties evince any intention, upon the part of the government, to discharge them from their condition of prepay or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits." (P. 654.)

²⁷¹ The Indians who remained behind under this provision dissolved their connection with the Cherokee Nation (*Cherokee Trust Cases*), 117 U. S. 288 (1886), without becoming citizens either of the United States or North Carolina. *United States v. Bond*, 83 Fed. 547 (C. A. 4, 1897).

In later years some of the ceded Cherokee lands were bought back by Cherokees who resisted removal. In 1925 this land was reconveyed to the United States in trust by Indians for disposition under the Act of June 4, 1924, 43 Stat. 376. See Historical Note, 25 U. S. C. A. 331.

²⁷² That the President has power to appoint new commissioners there being no limitation to this authority, except the fulfillment of its purposes, but that the expenses cannot be defrayed out of the cherokees, fund is the advice of the Attorney General. 16 Op. A. G. 300 (1879); 4 Op. A. G. 73 (1842). See also 5 Op. A. G. 268 (1850); H. Rept. No. 391, 28th Cong., 1st sess. (1844).

²⁷³ Treaty of September 20, 1816, 7 Stat. 150. For certain ceded lands north and south of the Tennessee River, the Indians received $12,000 per annum for 10 years (Arts. 2 and 3).

Article 7 prohibits the licensing of peddlers to trade within the Chickasaw Nation and describes the activities of the trader as a disadvantage to the nation.

²⁷⁴ Treaty of October 19, 1818, 7 Stat. 192, construed in *Porterfield v. Clark*, 2 How. 76, 83 (1844). All Chickasaw land north of the south boundary of Tennessee was ceded for $300,000—$20,000 annually for 15 years (Arts. 2 and 3).

²⁷⁵ Foreman, *op. cit.*, p. 193. Each of the Chickasaw chiefs was to receive four sections of land if the treaty were ratified.

²⁷⁶ Treaty of September 1, 1830 (unratified).

²⁷⁷ Several official attempts were made by the Government to persuade the Chickasaws of the desirability of amalgamating with the Choctaws. Foreman, *op. cit.*, pp. 193-196.

²⁷⁸ *Ibid.*, p. 197.

²⁷⁸ 7 Stat. 381. Supplementary and explanatory articles (7 Stat. 388) adopted October 22, 1832. Art. 9 is of interest. The Chickasaws

* * * * will always need a friend to advise and direct them. * * * * There shall be an agent kept with the Chickasaws as heretofore, so long as they live within the jurisdiction of the United States as a nation. * * * * And whenever the office of agent shall be vacant. * * * * the President will pay due respect to the wishes of the nation * * * *

was ceded to the United States²⁸⁰ to be sold at public auction.²⁸¹

Article 4 provides:

* * * that the Chickasaw people shall not deprive themselves of a comfortable home, in the country where they now are, until they shall have provided a country in the west to remove to * * * . It is therefore agreed * * * that they will endeavor as soon as it may be in their power, after the ratification of this treaty, to hunt out and procure a home for their people, west of the Mississippi river, * * * they are to select out of the surveys, a comfortable settlement for every family in the Chickasaw nation, to include their present improvements, if the land is good for cultivation, and if not they may take it in any other place in the nation, which is unoccupied by any other person. * * * All of which tracts of land, so selected and retained, shall be held, and occupied by the Chickasaw people, uninterrupted until they shall find and obtain a country suited to their wants and condition. And the United States will guaranty to the Chickasaw nation, the quiet possession and uninterrupted use of the said reserved tracts of land, so long as they may live on and occupy the same. * * *

Despite the guarantee of the United States to the Chickasaws of the "quiet possession and uninterrupted use" of the reserved tracts,²⁸² white settlers continued to overrun and occupy their country unlawfully.²⁸³ Furthermore, the problem of finding land in the West proved a difficult one. Finally convinced of the need for amending the treaty in certain particulars, the Government consented to the conclusion of another treaty on May 24, 1834.²⁸⁴ This altered the program of removal, granted in fee certain reservations, while asserting that the Chickasaws "still hope to find a country, adequate to the wants and support of their people, somewhere west of the Mississippi * * * * ²⁸⁵."

By Article 2, the Chickasaws on their removal west were to be protected by the United States from the hostile prairie tribes. They pledged themselves never to make war on another tribe, or on whites, "unless they are so authorized by the United States." Article 4 set up a commission of Chickasaws to pass on the competency of members of the tribe to handle and sell their land. Articles 5 and 6 listed the cases in which reservations could be granted in fee, and determined the amount of land in each case.²⁸⁶ Article 9 provided that funds from the sale of Chickasaw lands be used for schools, mills, blacksmith shops, etc.²⁸⁷

3. Choctaws.—By 1820 it was evident that the Choctaws, disturbed by the number of settlers who were pouring into the rich valleys of the Mississippi, would consent to “removal.” Ac-

²⁸⁰ *Ibid.*, Art. 1.

²⁸¹ *Ibid.*, Art. 2.

²⁸² *Ibid.* See Arts. 4 and 15.

²⁸³ Foreman, *op. cit.* p. 199.

²⁸⁴ Treaty of May 24, 1834, 7 Stat. 450. It is of interest that in previous treaties the word "cede" was used. In this the phrase "abandon their homes" is used (Art. 2).

²⁸⁵ Art. 2. Such land was not found until 1837, when the Chickasaws purchased a large tract of land from the Choctaws. Foreman, *op. cit.* p. 203.

²⁸⁶ For opinion that a widow keeping house and having children or other persons residing with her, except slaves, is the head of a family unless said children or other persons are provided for under the sixth and eighth articles; that as many Indian wives as were living with their children apart from their husbands (though wives of the same Iroquoian) are "heads of a family" within the meaning of the fifth article of the treaty, see 3 Op. A. G. 34, 41 (1836). And see, on the scope of investments under Art. 11, 3 Op. A. G. 170 (1837).

²⁸⁷ Title to reservations was complete when the locations were made to identify them. Best *v.* Polk, 18 Wall. 112 (1873).

²⁸⁸ For details concerning the number of claimants for lands; the number approved; and the names of the assignees of those Indians who obtained land's pursuant to the provisions of the Chickasaw treaty made at Washington in 1834, see H. Rept. No. 190, 20th Cong. 1st sess., vol. VI (1846).

²⁸⁹ Also see sec. 3C3 of this Chapter.

INTERPRETATION OF TREATIES

57

cordingly negotiations were begun and on October 18, 1820,²⁸⁸ the
Indians ceded to the United States the "coveted tract" in western
Mississippi²⁹⁰ for land west of the Mississippi between the
Arkansas and Red rivers.²⁹⁰

Article 4 of the treaty contains the guarantee that the boun-
daries established should remain without alteration

* * * until the period at which said nation shall be-
come so civilized and enlightened as to be made citizens
of the United States, and Congress shall lay off a limited
parcel of land for the benefit of each family or individual
in the nation.

Article 12 gives the agent full power to confiscate all whiskey ex-
cept that brought under permit into the nation. This appears
to be the first attempt by treaty to regulate traffic in liquor.

Shortly after the treaty was signed it was discovered that a
part of Choctaw's new country was already occupied by white
settlers.²⁹¹ The President called to Washington delegates from
the Choctaw Nation to reconsider the matter and negotiate
another treaty. This was done on January 20, 1825,²⁹² and the
Choctaws for $6,000 a year for 16 years (Art. 3), and a perma-
nent annuity of $6,000 (Art. 2), ceded back all the land lying
east of a line which today is the boundary between Arkansas
and Oklahoma. By Article 4 of the 1825 treaty it is also agreed
that all those who have reservations under the preceding treaty
"shall have power, with the consent of the President of the
United States, to sell and convey the same in fee simple." Article
7 calls for the modification of Article 4 of the preceding treaty
so that the Congress of the United States shall not exercise the
power of allotting lands to individuals without the consent of the
Choctaw Nation.

A few years later, federal agents, anxious to speed up the mi-
gration program under the Removal Act of 1830²⁹³ held another
series of conferences in the Choctaw Nation.

At Dancing Rabbit Creek, at a conference characterized by
generous present-giving,²⁹⁴ a treaty was signed on September 2,
1830.²⁹⁵ By this agreement the Choctaws ceded the remainder of
their holdings east of the Mississippi to the United States
Government in return for

* * * a tract of country west of the Mississippi River.
in fee simple to them and their descendants, to inur
to them while they shall exist as a nation and live on
it, * * * ²⁹⁵

²⁸⁸ Treaty of Deak's Stand of October 18, 1820, 7 Stat. 210. Construed in *Choctaw Nation v. United States*, 119 U. S. 1 (1886); *United States v. Choctaw Nation*, 179 U. S. 494, 507 (1900); *Mullen v. United States*, 224 U. S. 448, 450 (1912). In *Elk v. Wilkins*, 112 U. S. 94, 100 (1884), this treaty was cited in support of the statement that the alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. In *Fleming v. McCurtain*, 215 U. S. 56, 59 (1909), the Supreme Court declared that by this treaty the United States ceded certain lands to the Choctaw Nation with "no qualifying words."

²⁹⁹ *Abel, op. cit.* fn. 352, p. 286. The tract was coveted particularly by the state of Mississippi. See Art. 1.

³⁰⁰ Art. 2.

³⁰¹ *Abel, op. cit.*, pp. 286-287.

³⁰² Treaty of January 20, 1825. 7 Stat. 234, construed in 2 Op. A. G. 465 (1831), and 3 Op. A. G. 48 (1836).

³⁰³ Act of May 28, 1830, 4 Stat. 411, R. S. § 2114, 25 U. S. C. 174.

³⁰⁴ The expense account for the negotiations of Dancing Rabbit Creek submitted by the federal commissioners included items of $1,400.84 for calicos, quilts, razors, soap, etc. Sen. Doc. No. 512, 23rd Cong. 1st sess. pp. 251-255.

³⁰⁵ 7 Stat. 333. This was the first treaty made and ratified under the Removal Act of May 28, 1830, 4 Stat. 411.

³⁰⁶ Art. 2. In 1909 the United States Supreme Court examined this particular provision and ruled that this was a grant to the Choctaw Nation and was not to be held in trust for members of the tribe, i.e. upon dissolution of the tribal relationship would confer upon each individual absolute ownership as tenants in common. *Fleming v. McCurtain*, 215 U. S. 56 (1909). See Chapter 15, sec 1A.

207785—41—6

This tract was the same as that in the Treaty of January 20,
1825.²⁹⁷

Provision is also made for reservations of land to individual
Indians in Articles 14, 19 and 19.²⁹⁸ In Article 14, it is also stipu-
lated that a grant in fee simple shall issue upon the fulfillment of
certain conditions.²⁹⁹

Whether a true construction of Article 14 created a trust for the children of each reservee was one of the questions before the United States Supreme Court in *Wilson v. Wall*. Said the Court:

> The parties to this contract may justly be presumed to
> have had in view the previous custom and usages with
> regard to grants to persons "desirous to become citizens."
> The treaty suggests that they are "a people in a state of
> rapid advancement in education and refinement." But it
> does not follow that they were acquainted with the doc-
> trine of trusts. * * * ²⁹⁶¹ (P. 87.)

The following provisions of Article 4 of the Treaty of Dancing
Rabbit Creek deserve to be noted:

The Government and people of the United States are
hereby obliged to secure to the said Choctaw Nation of
Red People the jurisdiction and government of all the
persons and property that may be within their limits west,
so that no Territory or State shall ever have a right to
pass laws for the Government of the Choctaw Nation of
Red People and their descendants; and that no part of the
land granted them shall ever be embraced in any Territory
or State; but the U. S. shall forever secure said Choctaw
Nation from and against, all laws except such as from
time to time may be enacted in their own National Coun-
cils, not inconsistent with the Constitution, Treaties, and
Laws of the United States; * * * ²⁹⁶²

²⁹⁷ Stat. 234.

²⁹⁸ Article 14 provided reservations of land for those electing to remain and become citizens of the states. Such persons retained their Choctaw citizenship, but lost their annuity if they removed. That in the event of the death of reeves under the fourteenth article of the treaty of 1830, before the fulfillment of the condition precedent to the grant in fee simple of the reserve, the interest thereby acquired passes to those persons who under state laws succeed to the inheritable interest of the individual in question. See 3 Op. A. G. 107 (1836).

³⁰⁰ If an Indian was prevented by the force or fraud of individuals having no authority from the Government from complying with the conditions of Article 14 of the treaty of Dancing Rabbit Creek, it is considered by the Attorney General that the remedy was against such individuals, although if permanent dispossession was produced by the sale of the land by the Government (even though he might have temporarily lost possession by such tortious acts) his claim is still valid. 4 Op. A. G. 513 (1846). And see, on eligibility to receive reservations, 5 Op. A. G. 251 (1850).

³⁰¹ No forfeiture has resulted from the fraudulent acts of the agent of the Government who induced claimants to apply for acts of reserves under the nineteenth article, and which were located for them, but for which patents have not been demanded, nor issued. See 4 Op. A. G. 452 (1845).

³⁰² To the effect that the essential provisions of the Choctaw treaty of 1830 must take precedence over any rights claimed under the preemption laws, but that regulations to carry treaty into effect need not be inflexible and may be modified in any way not inconsistent with the treaty. See 3 Op. A. G. 365 (1838).

³⁰³ Re-domicile for 5 years after ratification of the treaty with the inten-
tion of becoming a citizen, is a condition.

³⁰⁴ *Wilson v. Wall*, 6 Wall, 83, 87-90 (1867).

³⁰⁵ In a negligence action brought in error to the United States Court in the Indian Territory, the defense advanced was a general denial and a plea of the statute of limitations which, it was claimed, was in force in the Indian Territory when that country was a part of the territory of Missouri, and remained in force notwithstanding the separation of the territory. This Circuit Judge Caldwell denied, calling attention to the treaty with the Choctaw Nation of September 27, 1830, 7 Stat. 333 by which the United States Government "bound itself in the most solemn manner to exclude white people from the territory, and never to permit the laws of any state or territory to be extended over it." *St. Louis & S. F. R. (N. v. O'Loughlin)* 49 Fed. 440, 442 (C, C. A. 8, 1892).

³⁰⁶ That this does not empower the Choctaws to punish by their own laws white men who come into their nation, see 2 Op. A. G. 693 (1834).
And see Chapter 7, sec. 9.

58

INDIAN TREATIES

The nature and extent of the jurisdiction of the Choctaw Nation were reviewed by Attorney General Caleb Cushing in 1855:

Now, among the provisions of the treaty of Dancing Rabbit Creek are several of a very significant character having exclusive reference to the question of criminal jurisdiction.

In the first place, it provides that any Choctaw, committing acts of violence upon the person or property of "citizens of the United States," shall be delivered up for trial and punishment by the laws of the United States; by which also are to be punished all acts of violence committed upon persons or property of the Choctaw nation by "citizens of the United States." Provision less explicit, but apparently on the same principle, is made for the repression or punishment of theft. General engagement is made by the United States to prevent or punish the intrusion of their "citizens" into the territory of the nation. (Arts. 6, 7, 9, 12.)

In the second place, the Choctaws express a wish in the treaty that Congress would grant to the Choctaws the right of punishing, by their own laws, "any white man" who shall come into the nation, and infringe any of their national regulations (art. 4). But Congress did not accede to this request. On the contrary, it has made provision, by a series of laws, for the punishment of crimes affecting white men, committed by or on them in the Indian country, including that of the Choctaws, by the courts of the United States. (See act of June 30, 1834, iv Stat. at Large, p. 729, and act of June 17, 1844, v Stat. at Large, p. 680.) These acts cover, so far as they go, all crimes except those committed by Indian against Indian.

But there is no provision of treaty, and no statute, which takes away from the Choctaws jurisdiction of a case like this, a question of property strictly internal to the Choctaw nation; nor is there any written law which confers jurisdiction of such a case on any court of United States. * * *⁴⁰⁰ (Pp. 174, 178-179.)

Before the Treaty of Dancing Rabbit Creek was proclaimed,⁴⁰⁰ whites began to move into Choctaw country illegally,⁴⁰¹ and Indians, "ill-organized and inadequately provisioned" began to move west⁴⁰² under the aegis of Greenwood Le Flore, a mixed blood and former Choctaw chief.⁴⁰³ President Jackson then ordered that removal be supervised by the Army.⁴⁰⁴ Removal began on a large scale in the fall of 1831.⁴⁰⁵ It had not been entirely completed at the end of the century.⁴⁰⁶

4. Crecks.—The cession ⁴³⁰ of land by the Creeks after the uprising of the "hostiles" in 1812 "was the first step in the direction of systematic removal."⁴³¹

The Compact of 1802⁴³¹ became the source of constant agitation in Georgia for change in the Creek boundary line. On January 22, 1818, a redefinition of the boundary of the Creek Nation was secured,⁴³² but the lands obtained by this agreement were less fertile⁴³³ than had been anticipated and another treaty

was negotiated January 8, 1821.⁴³⁴ Part of the consideration tendered the Creeks on this occasion (Art. 4) was the payment to the State of Georgia of "* * * whatever balance may be found due by the Creek Nation to the citizens of said state * * *." The value of the ceded land was placed at $450,000, of which not more than $250,000 was to be paid to settle the claims of Georgia citizens against the Creek Nation,⁴³⁵ the exact amount of which is left to the decision of the President of the United States.

After the award had been made, Georgia asked that it be enlarged to cover other claims. The Attorney General, after advising that the award of President Monroe must be considered final and conclusive, reviewed the contents of the treaties between the United States and the Creek Nation and asserted:

One head of these claims submitted for my opinion is the claim for property destroyed, and which the people of Georgia carry back to 1783, the date of the treaty of Augusta. How stands this claim under these treaties? There is not one treaty which contains any stipulation to answer for property destroyed. * * * what is the effect, in a treaty of peace, of express provisions with regard to some past wrongs, and a total silence as to others? Is it not a virtual extinguishment of all claims for antecedent wrongs with regard to which the treaty is silent?

It is further asked, why the Creek nation did not stipulate for the payment over to themselves of the large surplus that must inevitably remain, upon the supposition that the claim for property destroyed was not to be allowed? * * * They were at the feet of the white people, with whom they were treating. They saw a formidable array of claims, * * * and of the circumstances attending which, the living race of Creeks must have been wholly ignorant—and now dug up from the dead, by the State of Georgia, and presented and pressed as living and valid claims. * * * the alleged debtors were Indians, a conquered and despised race, for whom it was natural for them to suppose that no sympathy was left either by the creditor or the judge. Is it not probable that, under these circumstances, they were ignorant enough to think it probable that no surplus would remain, and that they were willing enough to surrender to the United States the whole $50,000, on the condition of their relieving them from claims to which there seemed to be no end, but which threatened to be immortal? * * *⁴³⁷

In 1824 commissioners from the United States Government arrived in the Creek Nation to negotiate for still another session. At Broken Arrow, in Alabama, they met with the Creeks and told them that the President had extensive holdings beyond the Mississippi which he wished to give them in exchange for the land they then occupied.⁴³⁸

The Creek chiefs replied:

* * * ruin is the almost inevitable consequence of a removal beyond the Mississippi, we are convinced. It is true, very true, that "we are surrounded by white people," that there are encroachments made—what assurances have we that similar ones will not be made on us, should we deem it proper to accept your offer, and remove beyond

⁴³⁰ 7 Op. A. G. 174, 178-179 (1855). See Chapter 7, sec. 9.

⁴³¹ February 24, 1831.

⁴³² Foreman, op. cit. p. 31.

⁴³³ *Ibid.*, p. 38.

⁴³⁴ *Ibid*.

⁴³⁵ *Ibid.*, p. 42.

⁴³⁶ *Ibid.*, pp. 48-49.

⁴³⁷ *Ibid.*, p. 104.

⁴³⁸ Treaty of August 9, 1814, 7 Stat. 120.

⁴³⁹ *Abel, op. cit.* fn. 352, p. 278. See sec. 4D, *supra*.

⁴⁴⁰ By that compact, Georgia ceded territory now part of Alabama and Mississippi in consideration of which the United States agreed to extinguish Indian title within the limits of Georgia as soon as it could be done "peaceably and on reasonable terms." *Abel, op. cit.*, pp. 322, 323.

⁴⁴¹ Ordinarily lands ceded to the United States become part of the public domain. By the Georgia pact, it became the property of the state. Hence, Georgia felt her failure to share sufficiently in previous land cessions was the result of national selfishness (*Abel, op. cit.*, p. 322).

⁴⁴² Treaty of January 22, 1818, 7 Stat. 171.

⁴⁴³ Indian Office Letter Books, Series I, D, p. 224, cited in *Abel, op. cit.*, pp. 322, 323.

⁴⁴⁴ Treaty of January 8, 1821, 7 Stat. 215. Subsequent to this treaty, the question of w’ether the United States was keeping her part of the Georgia compact arose. A House committee reporting on January 7, 1822 (American State Papers, "Indian Affairs," II, p. 259), held that it was not. According to *Abel, op. cit.*, p. 323, the constitutional significance of removal dates from that report.

⁴⁴⁵ By the Treaty of August 7, 1790, 7 Stat. 35, the Creeks had undertaken responsibility to return prisoners, white or Negro, in any part of the nation (Art. 3). By that article, the Treaty of Indian Springs of January 8, 1821 (Art. 4), 7 Stat. 215, held them responsible for claims not exceeding $250,000 by the citizens of Georgia, for runaway slaves, Foreman, op. cit., p. 317.

⁴⁴⁶ 2 Op. A. G. 110, 129, 150-151 (1828).

⁴⁴⁷ Talk, December 7, 1824, Journal of Proceedings at Broken Arrow (Indian Office MS, Records) cited in *Abel, op. cit.* fn. 352, p. 337.

A HISTORY OF INDIAN TREATIES

59

the Mississippi; and how do we know that we would not be encroaching on the people of other nations?⁴⁹⁰

Finally after days of unavailing speech-making the conference was adjourned. However, one Commissioner, Duncan G. Campbell, aware that one faction in the Creek Nation headed by William McIntosh⁴⁹¹ favored migration, brought about the resumption of treaty negotiations at Indian Springs, its stronghold in Georgia.⁴⁹²

Significantly the Great Chief of the Creeks, Little Prince, and his second in command, Big Warrior, were absent, having dispatched a representative to the treaty council to protest against the lack of authority of those in attendance.⁴⁹³ Undiscouraged, Campbell continued the negotiations and on February 12, 1825,⁴⁹⁴ a treaty was concluded providing for the surrender of certain Creek holdings for $400,000 for lands of "like quantity, acre for acre, westward of the Mississippi."⁴⁹⁵

A year later a new treaty⁴⁹⁶ was negotiated and referred to the Senate which refused its "advice and consent."⁴⁹⁷ A few days later a supplementary article⁴⁹⁸ providing for an additional cession of land was submitted and with this alteration, the treaty received Senate confirmation.⁴⁹⁹

Here, however, the matter did not end. Georgia now denied that treaties with the Indians had the same effect as those with civilized nations and asked that the whole question of claims under the Treaty of 1821 be reconsidered. This was refused by the Attorney General of the United States who declared:

> The matter of this objection requires to be coolly analyzed.

First, they are an *uncivilized nation*. And what then? Are not the treaties which are made with them obligatory on both sides? It was made a question in the age of Grotius, whether treaties made by Christians with heathens were obligatory on the former. "This discussion," says Vattel (book II, chap. xii, sec. 161), "might be necessary at a time when the madness of party still darkened those principles which it had long caused to be forgotten; but we may venture to believe it would be superfluous in our age. The law of nature alone regulates the treaties of nations. The difference of religion is a thing absolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Christians or of Mussulmans. Their

⁴⁹⁰ Talk, December 8, 1824, Journal of Proceedings, cited in Abel, op. cit., p. 337.

⁴⁹¹ A mixed blood, cousin of Governor Troup of Georgia, and leader of the lower Creek towns (Abel, op. cit., p. 335).

⁴⁹² Campbell had suggested various ways of securing the Creek signature to a "r'moval" treaty. Finally he was informed that the President would not countenance a treaty unless it were made "in the usual form, and upon the ordinary principles with which Treaties, are held with Indian tribes * * *" Indian Office Letter Books, Series II, No. 1, pp. 309-310, cited in Abel, op. cit., p. 339.

⁴⁹³ Abel, op. cit., p. 340.

⁴⁹⁴ Stat. 237.

⁴⁹⁵ Art. 2. All Creek holdings within the State of Georgia were included in the cession.

⁴⁹⁶ Treaty of Washington of January 24, 1826, 7 Stat. 286.

⁴⁹⁷ Abel, op. cit., p. 352.

⁴⁹⁸ Supplementary article of March 31, 1826, 7 Stat. 289.

⁴⁹⁹ In the Committee of the Whole, Berrien of Georgia, asked that the first article be altered so that the Indian Spring Treaty could be abrogated without reflecting upon its negotiation. This was refused. Berrien and five others were the only members of the Senate who on the final vote refused to consent to ratification. Afterwards, Berrien admitted that he had voted against the treaty because he felt that it did not contain enough of an inducement to migration. American State Papers, Indian Affairs II, pp. 748-749, cited in Abel, op. cit., p. 352.

Before the whole matter was settled to the satisfaction of Georgia, which claimed that more than the described territory should have been relinquished, another treaty of cession was negotiated. Treaty of November 15, 1827, 7 Stat. 307.

common safety requires that they should treat with each other, and treat with security. * * *

What Vattel says of difference of religion is equally applicable to this objection * * * . And that civilization which should claim an exemption from the full obligations of a treaty, or seek to narrow it by construction, on the ground that the other party to the treaty was univilified, would be as little entitled to our respect as the religion which should claim the same consequences on the ground that the other treating party was a heathen.⁵⁰⁰

With the departure from the Presidency of John Quincy Adams the strict observance of treaty obligations with the Indian tribes ceased to be an accepted national policy. Henceforth the emphasis was to be on "removal," and a few days after his inauguration Andrew Jackson insisted that it was necessary for the Creeks to migrate as soon as possible.⁵⁰¹ In vain the Creeks protested.⁵⁰² Their delegation to Washington was granted an audience on the condition that they would be fully "mpowered to negotiate in conformity with the wishes of the Government.⁵⁰³ Finally, a treaty was concluded March 24, 1822,⁵⁰⁴ and all the Creek land east of the Mississippi passed into the possession of the Federal Government.

By article 14 of this agreement, the United States solemnly promised tribal self-government to the Creeks. A number of years later this guarantee figured in a charge to the jury regarding robbery committed in the Indian country. The court in denying that the Indian country was under the sole and exclusive jurisdiction of the United States said:

* * * A sole and exclusive jurisdiction would exclude all Indian laws and regulations, punish crimes committed by Indian on Indian, and regulate and govern property and contracts and the civil and political relations of the inhabitants, Indians and others, in that country. It would be wholly opposed to a self-government by any Indian tribe or nation. This self-government is expressly recognized and secured by several treaties between the United States and Indian tribes in the Indian country attached by the act of 1834 to Arkansas or Missouri District for certain purposes. This may be seen from the treaty with the Choctaws in 1830, and the treaty with the Creeks in 1832, and other Indian treaties. * * *⁴⁹⁵ (P. 1034.)

For a number of years it was alleged that the United States had not fulfilled its obligations under this treaty. Suit was brought by the Creek Nation in the Court of Claims under the jurisdictional act of May 24, 1924.⁵⁰⁶ The plaintiff sought to recover the 1837 value of the entire reserves except as to those sales for which it had been proved that the owners received the stipulated "fair consideration," alleging that the Government

⁴⁹⁷ 2 Op. A. G. 110, 135-136 (1828). See also sec. 1, supra, fn. 5.

⁴⁹⁸ Indian Office Letter Books, Series II, No. 5, pp. 373-375, cited in Abel, op. cit., fn. 752, p. 370.

⁴⁹⁹ On February 6, 1832, the Head Men and Warriors of the Creek Indians addressed the Congress of the United States entreatying them not to insist on the program of removal pointing out "We are assured that, beyond the Mississippi, we shall be exempted from further exaction; * * * Can we obtain * * * assurances more distinct and positive, than those we have already received and trusted? Can their power exempt us from intrusion in our promised borders, if they are incompetent to our protection where we are? * * * H. Doc. No. 102, 22d Cong., 1st sess. (1832), vol. 3, pp. 1, 3.

⁵⁰⁰ Indian Office Letter Books, Series II, No. 7, p. 422, cited in Abel, op. cit., pp. 387-388.

⁵⁰¹ 7 Stat. 366. (This was amended in certain particulars by treaties of February 14, 1833, 7 Stat. 417, and November 23, 1838, 7 Stat. 574.) Article IV of the Treaty of February 14, 1833, 7 Stat. 417, expressly mentioned the Seminole Indians in Florida and provided for a permanent and comfortable home on the lands of the Creek Nation according to treaty negotiations with the Seminoles May 9, 1832, 7 Stat. 368.

⁵⁰² Anonymous. 1 Fed. Cas. No. 447 (C. C. Missouri 1843). And see Atlantic and Pacific Railroad Co. v. Mingus, 165 U. S. 8, 413, 435-436 (1897). See Chapter 24.

⁵⁰³ C. 181, 43 Stat. 139.

["60", "INDIAN TREATIES", "failed to remove intruders from the country ceded as guaranteed by Article V of the treaty and that as a result it became impossible to fulfill Articles II and III involving the surveying and selection by the Indians, of reserved lands. While the Court of Claims found that the Creek Nation, with certain exceptions, had waived all claims and demands in a subsequent treaty, its holding on the execution of this treaty is illuminating:", "* * * While the record leaves no room for doubt that most dastardly frauds by impersonation were perpetrated upon the Indians in the sales of a large part of the reserves, the conclusion is justified, and we think inescapable, that because of repeated investigations prosecuted by the Government these frauds were largely eliminated. The investigations were conducted by able and fearless men and were most thorough. Every possible effort was exerted by them to have individual reserves who claimed they had been defrauded to present their claims. Chiefs of the nation were invited to bring to the attention of the Investigators all claims of fraudulent practices upon the Indians, and were assured all claims would be considered and justice done. Hundreds of contracts upon investigation were found to have been fraudulently procured and their cancellation recommended by the investigating agents. While the identity of the particular cases investigated and found to have been fraudulent, and the final action of the Government on the agent's reports recommending the reversal of such cases were not disclosed, it is manifest their recommendations were in the main followed and new contracts of sales were made, certified to the President and approved by him. (Pp. 252, 260.)<sup>427</sup>", "5. *Florida Indians.*<sup>428</sup>—One of the problems arising from the treaty with Spain by which the Floridas<sup>428</sup> were acquired was that of the proper disposition<sup>429</sup> of the Indians who inhabited that region.<sup>430</sup> In some quarters it was insisted that the Indians had been living in the territory by sufferance only and even if this were not true their lands were now forfeit by conquest.<sup>431</sup> General Jackson in particular was outspoken in his opposition to treating with the Indians, asserting that if Congress were ever going to exercise its power over the natives it could not do better than to begin with these \"conquered\" natives.<sup>432</sup>", "After 2 years of considering the various viewpoints, concentration in Florida was decided upon, and President Monroe appointed commissioners to treat with the Florida Indians. The result was the Treaty of Camp Moultrie of September 18, 1823.<sup>433</sup> Article 1 of this instrument recites that—", "> The undersigned chiefs and warriors, for themselves and their tribes, have appealed to the humanity, and thrown themselves on, and have promised to continue under, the protection of the United States, and of no other nation, power, or sovereign; and, in consideration of the promises and stipulations hereinafter made, do cede and relinquish all claim or title which they may have to the whole territory of Florida * * *.", "<sup>427</sup> *Creek Nation v. The United States, 77 C. Cls. 226, 252, 260 (1933).* On alleged diversion of Creek Orphan fund under Article II: *distinctions as to issuing of patents on individual reserves under II, III, IV, as to state citizenship and right to patent, Art. 4.* See 16 Op. A. G. 31 (1878); 3 Op. A. G. 288 (1837), 585 (1840).", "<sup>428</sup> See fn. 417, *supra*.", "<sup>429</sup> *Treaty of February 22, 1819; October 29, 1820, with Spain, ratified by United States, February 18, 1821, 8 Stat. 252.*", "<sup>430</sup> In 1821, a subagent, Penleres, was appointed for the Florida Indians by Jackson (then Governor) to explore the country, determine the number of Indians, and prepare them either for concentration in Florida or for removal elsewhere. *Abel, op. cit.*, p. 328.", "<sup>431</sup> They were known as Seminoles (\"separatist\") and consisted of descendants of Creek Tribes, Hitchiti, Yamasee, Yuchi, and a Negro element. *Foreman, op. cit.*, p. 315.", "<sup>432</sup> *Abel, op. cit.*, p. 328. The first Seminole War, with General Andrew Jackson in command, had ended in 1818, disastrously for the Indian. Escape by runaway slaves into their territory continued, as did the subsequent white raids. *Foreman, op. cit.*, p. 318.", "<sup>433</sup> *Abel, op. cit.*, p. 329.", "In return the United States (Art. 4) \"assigned\" land with a guarantee of peaceable possession, and gave them (Art. 3) in addition to implements, stock and an annuity, protection against all persons", "* * * provided they conform to the laws of the United States, and refrain from making war, or giving any insult to any foreign nation, without having first obtained the permission and consent of the United States.", "An additional article granted to six chiefs permission to remain and large tracts of lands.", "Soon it was obvious that the territory assigned was unsatisfactory. Agriculture was impossible in the swamps of the interior. Although as provided by Article 9 the boundary line was to be extended to find \"good tillable land,\" it still failed to afford the tribe adequate means of support.<sup>434</sup>", "Friction developed between Indians who remained and white settlers, and between the removed Indians and whites searching for runaway slaves. The plight of those who had removed grew steadily worse.<sup>435</sup>", "In 1832 at Payne's Landing, they were persuaded to migrate, although the treaty<sup>436</sup> was not to be considered binding until an initial party explored the west and found a suitable home. However, in 1833 the chiefs who undertook this preliminary search, without authority to do so, signed another treaty<sup>437</sup> which was construed to make removal under the early treaty obligatory instead of conditional. This treaty was never accepted by the tribe, and large scale removal of Seminoles never took place.<sup>438</sup>", "6. *Other tribes.*—In the Northwest Territory a treaty of removal was concluded with the Delaware Indians on October 3, 1818.<sup>439</sup> Article 2 of this agreement binds the United States in exchange for land in Indiana "* * * to provide for the Delawares a country to reside in, upon the west side of the Mississippi, and to guaranty to them the peaceable possession of the same.", "The next year treaties signed at Edwardsville, Illinois,<sup>440</sup> and at Fort Harrison<sup>441</sup> provided for exchange of Kickapoo lands from Indiana and Illinois to Missouri territory. By the terms of the Edwardsville treaty (Art. 6) the United States ceded to the Indians and their heirs forever a certain tract of land in Missouri territory, provided that \"the said tribe shall never sell the said land without the consent of the President of the United States.\" Article 4 of the Fort Harrison treaty refers to the contemplation by the tribe of Kickapoos of the Vermilion, of \"removing from the country they now occupy * * *.\"", "In 1824, a treaty<sup>442</sup> with the Quapaw Nation was concluded, whereby the Quapaws ceded all their land in Arkansas territory and agreed to remove to the land of the Caddo Indians (Art. 4).", "These agreements were for a number of years the major attempts made by the United States to persuade the Indians of", "<sup>444</sup> 7 Stat. 224. For the first time (Art. 7) recognition is taken of the fugitive slave problem and the Indians agree to prevent such individuals from taking refuge, and to apprehend and return them for a compensation. See also *Treaty of June 18, 1833, 7 Stat. 427*, in which the *Appalachicola Band of Indians relinquished all privileges to which they were entitled by this treaty (Art. 1).*", "<sup>445</sup> *Abel, op. cit.*, pp. 330-334; *Foreman, op. cit.*, pp. 318-319.", "<sup>446</sup> *Foreman, op. cit.*, pp. 318-320.", "<sup>447</sup> *Treaty of May 9, 1832, Preamble and Art. 1, 7 Stat. 368.*", "<sup>448</sup> *Treaty of March 28, 1833, 7 Stat. 423.* This treaty was the cause of the second Seminole War. *Foreman, op. cit.*, p. 321. 8 me of the Indians fled to the swamps where desultory fighting went on for years.", "<sup>449</sup> *Foreman, op. cit.*, p. 323.", "<sup>450</sup> *Treaty of October 3, 1818, 7 Stat. 188.* And see supplement to this treaty, September 24, 1829, 7 Stat. 327.", "<sup>451</sup> *Treaty of July 30, 1819, 7 Stat. 200.*", "<sup>452</sup> *Treaty of August 30, 1819, 7 Stat. 202.*", "<sup>453</sup> *Treaty of November 15, 1824, 7 Stat. 232.*"]

A HISTORY OF INDIAN TREATIES

61

that region to exchange their holdings for land lying else-
where.⁴⁴ Then, in the autumn of 1832 four treaties were
negotiated at Castor Hill, Missouri, which assured the departure
from Missouri of the remnants of the Kickapoos,⁴⁵ the Shawanoes
and Delawares,⁴⁶ the Kaskaskias and Peorias,⁴⁷ and the Piankeshaws and Weas.⁴⁸ In the meantime other
federal commissioners were negotiating with the bands of
Pottawatomies, who inhabited Indiana, Illinois, and Michigan.
Although a number of treaties⁴⁹ providing for cession of their
land were concluded with them, it was not until late in 1834
that their signature was secured to the first of a series of
"removal" treaties.⁵⁰ The treaty of February 11, 1837,⁵¹ pro-
vided for final removal within 2 years.

For a number of years the white settlers in the Northwest
and the Sacs and Foxes had clashed. In 1804⁵² the United
Tribes of Sac and Fox Indians had made a treaty of limits
with the United States. The white settlers interpreted that to
mean relinquishment of all claims east of the Mississippi.
This cession the Sacs and Foxes never recognized.⁵³ Dissatis-
faction was further increased by the treaties of August 4,
1824⁵³ August 19, 1825,⁵⁴ and July 15, 1827.⁵⁵ After the making
of the last treaty, the Indians left on their winter hunt and
upon returning discovered that their lands north of Rock
River, which had been in dispute for some time, had been
surveyed and sold during their absence. Hostilities ensued.
At the battle of Bad Axe, August 2, 1832, the Winnebagoes and
the Sacs and Foxes were defeated.⁵⁶ In the treaties of Fort
Armstrong which resulted, the United States secured from the
Winnebagoes all their claims east of the Mississippi,⁵⁷ and from

⁴⁴ Treaties of cession were common during this period, but outright removal to exchanged lands was not.

⁴⁵ Treaty of October 24, 1832, 7 Stat. 391.

⁴⁶ Treaty of October 26, 1832, 7 Stat. 397.

⁴⁷ Treaty of October 27, 1832, 7 Stat. 403.

⁴⁸ Treaty of October 29, 1832, 7 Stat. 410.

⁴⁹ Treaty of October 2, 1818. with the Potawatamie, 7 Stat. 185;
Treaty of August 29, 1821, with the Ottawa, Chippewa, etc., 7 Stat. 218;
Treaty of August 19, 1825, with the Sioux and Chippewa, etc., 7 Stat. 272;
Treaty of October 16, 1826, with the Potawatamie, 7 Stat. 295; Treaty of
September 19, 1827, with the Potawatamie, 7 Stat. 305; Treaty of Au-
gust 25, 1828, with the United Tribes of Potawatamie, Chippewa, etc., 7
Stat. 315; Treaty of September 20, 1828, with the Potowatami, 7 Stat.
317; Treaty of July 29, 1829, with the United Nations of Chippewas, Ot-
tawa, etc., 7 Stat. 320; Treaty of October 20, 1832, with the Potawatamie,
7 Stat. 378; Treaty of October 26, 1832, with the Pottawatimie, 7 Stat.
394; Treaty of October 27, 1832, with the Potowatomies, 7 Stat.;
399; Treaty of December 4, 1834, with the Potawatimie, 7 Stat. 467;
Treaty of December 16, 1834, with the Potawatamie, 7 Stat. 468.

⁵⁰ Treaty of December 17, 1834, 7 Stat. 469; Treaty of March 26, 1836, 7 Stat. 490; Treaty of March 29, 1836, 7 Stat. 498; Treaty of April 11, 1836, 7 Stat. 499; Treaty of April 22, 1836, 7 Stat. 500; Treaty of April 22, 1836, 7 Stat. 501; Treaty of August 5, 1836, 7 Stat. 505; Treaty of September 20, 1836, 7 Stat. 513; Treaty of September 22, 1836, 7 Stat. 514; Treaty of September 23, 1836, 7 Stat. 515; Treaty of February 11, 1837, 7 Stat. 532.

⁵¹ 7 Stat. 532.

⁵² Treaty of November 3, 1804, 7 Stat. 84.

⁵³ Abel, op. cit., pp. 388-389.

⁵⁴ 7 Stat. 229. Interpreted in Marsh v. Brooks, 8 How. 223, 231, 232 (1850).

⁵⁵ 7 Stat. 272. Construed in Beecher v. Wetherby, 95 U. S. 517 (1877). To this treaty the Sioux and the Chippewa, Menomine, Ioway, Winnebagoe, and a portion of the Ottawa, Chippewa, and Potawatomie tribes were also parties.

On October 21, 1837, by a treaty with the Sacs and Foxes of Missour, 7 Stat. 543, the right or interest to the country described in the second article and recognized in the third article of this treaty, was ceded to the United States together with all claims or interests under the treaties of November 3, 1804, 7 Stat. 84; August 4, 1824, 7 Stat. 229; July 15, 1830, 7 Stat. 328; and September 17, 1836, 7 Stat. 511.

⁵⁶ 7 Stat. 328.

⁵⁷ Abel, op. cit., p. 391.

⁵⁸ Treaty of September 15, 1832, 7 Stat. 370.

the Sacs and Foxes nearly all of eastern Iowa with the ex-
ception of a small reserve on which they were concentrated.⁵⁹

In the following year the Federal Government obtained the consent of the "United Nation of Chippewa, Ottawa and Potawatamie Indians" to a treaty at Chicago, Illinois. In this treaty⁶⁰ the United States, in exchange for the land the Indians held—about 5,000,000 acres including the western shore of Lake Michigan—granted to them (Art. 2) approximately the same amount of territory "to be held as other Indian lands are held."

At about the same time, the Quapaws were concentrated in the northeast corner of the Indian territory.⁶¹ This was done because of the failure of the original plan⁶² to confine them to lands occupied by the Caddo Indians.⁶³

It is not to be assumed that during this period treaty-makers
were occupied with "removal" to the exclusion of all else. In
fact, until 1828, the number of treaties negotiated solely for the
purpose of extinguishing aboriginal title to land predominated.⁶⁴
Even during the years 1828-40 when the migration program was
at its height, treaties were concluded with the Oroes and Mis-
sourias.⁶⁵ Pawnees,⁶⁶ Menominees,⁶⁷ the Miamis,⁶⁸ (3 treaties)
the Wyandots,⁶⁹ the United Nations of Chippewas, Ottawa, and
Potawatamie Indians,⁷⁰ Iowas,⁷¹ Yankton Sioux,⁷² Sioux,⁷³ and

⁴⁰ Treaty of September 21, 1832, 7 Stat. 374.

⁴¹ Treaty of September 26, 1833, 7 Stat. 431.

⁴² Treaty of May 13, 1833, 7 Stat. 424.

⁴³ Treaty of November 15, 1824, 7 Stat. 232.

⁴⁵ The lands given them by the Caddoes proved very poor, hence they returned to their old home in Arkansas. (Preamble, Treaty of May 13, 1833, 7 Stat. 424.)

It should be noted that by Treaty of July 1, 1835, the Caddo Indians (7 Stat. 470) agreed to removal in these terms: "* * * promise to remove at their own expense out of the boundaries of the United States * * * never more to return to live, settle or establish themselves as a nation, tribe or community of people within the same."

⁴⁷ There are 21 of these which have not been noted before: Treaty of September 29, 1817, with Wyandot, Seneca, etc., 7 Stat. 160; Treaty of September 17, 1818, with Wyandot, Seneca, etc., 7 Stat. 178; Treaty of September 20, 1818, with Wyandots, 7 Stat. 180; Treaty of October 2, 1818, with Wea Tribe, 7 Stat. 186 ("The United States, by treaty with the Delaware Indians in 1818, agreed to provide a country for them to reside in." United States v. Stone, 2 Wall. 525 (1864)); Treaty of October 6, 1818, with Miamie Nation, 7 Stat. 189; Treaty of September 24, 1819, with Chippewa Nation, 7 Stat. 203; Treaty of June 16, 1820, with Chippewa Tribe, 7 Stat. 206 (7 Stat. 203 and 7 Stat. 206, construed in Chippewa Indians of Minnesota v. United States, 301 U. S. 358, 360 (1937)); Spalding v. Chandler, 160 U. S. 8, 394, 403 (1896); Treaty of July 6, 1820, with Ottawa and Chippewa Nations, 7 Stat. 207; Treaty of August 11, 1820, with Wea Tribe, 7 Stat. 209; Treaty of August 5, 1826, with Chippewa Tribe, 7 Stat. 290; Treaty of October 23, 1826, with Miami Tribe, 7 Stat. 300; Treaty of August 11, 1827, with Chippewa, Menomonee, and Quapaw Tribes, 7 Stat. 303; Treaty of August 24, 1818, with Quapaw Nation, 7 Stat. 176; Treaty of September 25, 1818, with Great and Little Osage Nation, 7 Stat. 183; Treaty of June 2, 1825, with Great and Little Osage Nations, 7 Stat. 268; Treaty of June 3, 1825, with Kansas Nation, 7 Stat. 244 (construed in Jones v. Meehan, 175 U. S. 1 (1899); Smith v. Stevens, 10 Wall. 321, 325 (1870); State of Missouri v. State of Iowa, 7 How. 660 (1849)); Treaty of November 7, 1825, with Shawonee Nation, 7 Stat. 284; Treaty of September 25, 1818, with Peoria, Kaskaskia, etc., 7 Stat. 181; Treaty of February 11, 1828, with Eel River or Thorntown party of Miami Indians, 7 Stat. 309.

⁴⁸ Treaty of September 21, 1833, 7 Stat. 429.

⁴⁹ Treaty of October 9, 1833, 7 Stat. 448.

⁵⁰ Treaty of October 27, 1832, 7 Stat. 405. This modified the treaty concluded February 8, 1831, 7 Stat. 342, and provided for a grant of land to the Stockbridge, Munsee and Brothertown Indians, and New York Indians. Later the Stockbridge Indians migrated west under the terms of the Treaty of September 3, 1839, 7 Stat. 580.

⁵¹ Treaty of October 23, 1834, 7 Stat. 458; Treaty of November 6, 1838, 7 Stat. 569; Treaty of November 28, 1840, 7 Stat. 582.

⁵² Treaty of April 23, 1836, 7 Stat. 502.

⁵³ Treaty of July 29, 1829, 7 Stat. 320.

⁵⁴ Treaty of October 19, 1838, 7 Stat. 568.

⁵⁵ Treaty of October 21, 1837, 7 Stat. 542.

⁵⁶ Treaty of September 29, 1837, 7 Stat. 538.

62

INDIAN TREATIES

Great and Little Osage Indians,⁴⁸⁴ providing for a considerable restriction of their ancient domains. A series of treaties were also negotiated about 1825 by Brig. Gen. Henry Atkinson of the United States Army and Benjamin O'Fallon, Indian agent, which dealt only with problems of trade and friendship.⁴⁸⁵

## F. TRIBES OF THE FAR WEST: 1846-54

In the late summer of 1846, war having been declared with Mexico,⁴⁸⁶ General Philip Kearney in command, the Army of the West advanced into New Mexico.

Without doing battle New Mexico's governor fled, leaving Kearney in control of the province,⁴⁸⁷ Following the cession of the province to the United States by the Treaty of Guadalupe Hidalgo, of February 2, 1848,⁴⁸⁸ a treaty of peace with the Navaho Indians who inhabited that region was concluded in 1849.⁴⁸⁹

Two months later, December 30, 1849, another far western tribe, the Utahs, signed a treaty,⁴⁹⁰ and the period of negotiating with the Indians who roamed through the area acquired from Mexico and the Oregon Territory may be said to have opened.⁴⁹¹

To Fort Laramie in the early autumn of 1851 came a great number of Sioux, Cheyenne, Arapaho, Crow, Assiniboine, Gros Ventre, Mandan, and Aricara. After several days of conference, Indian agent Thomas Fitzpatrick secured their signatures to a treaty in which the natives promised peace, acknowledged certain boundaries and agreed to recognize the right of the United States to erect posts and maintain roads within their territory.⁴⁹²

This treaty was never formally proclaimed by the President and because of this its validity was challenged in Roy v. United States and Ogallala Tribe of Sioux Indians.⁴⁹³ The Court of Claims examined the circumstances, found that the treaty had been acted upon by Congress, and referred to in subsequent agreements, and held that proclamation was not necessary to give it effect and that both parties were bound by the covenant from the date of its signature.

In the meantime the discovery of gold in California had caused the migration westward to assume the proportions of a

⁴⁸⁴ Treaty of January 11, 1839, 7 Stat. 576.

⁴⁸⁵ Treaty of June 9, 1825, with Poncar Tribe, 7 Stat. 247; Treaty of June 22, 1825, with Teton, Yancton, and Yanctonies Bands of Sioux Tribe, 7 Stat. 250; Treaty of July 5, 1825, with Sloune and Ogallala Tribes, 7 Stat. 252; Treaty of July 6, 1825, with Chayenne Tribe, 7 Stat. 255; Treaty of July 16, 1825, with Hunkpapa Band of Sioux, 7 Stat. 257; Treaty of July 18, 1825, with Récara Tribe, 7 Stat. 259; Treaty of July 30, 1825, with Belants'etoa or Minnetsaré Tribe, 7 Stat. 261; Treaty of July 30, 1825, with Mandan Tribe, 7 Stat. 264; Treaty of September 26, 1825, with Ottoe and Missouri Tribe, 7 Stat. 277; Treaty of September 30, 1825, with Pawnee Tribe, 7 Stat. 279; Treaty of October 6, 1825, with Maha Tribe, 7 Stat. 282.

⁴⁸⁶ 9 Stat. 922. See Chapter 20, sec. 3.

⁴⁸⁷ Act of May 13, 1846, 9 Stat. 9, and Presidential Proclamation, Appendix No. 2, 9 Stat. 999.

⁴⁸⁸ The province was taken in the name of the United States on August 22, 1846, and Kearney was made governor. Wise, The Red Man in the New World Drama (1931), p. 408.

⁴⁸⁹ Treaty of September 9, 1849, 9 Stat. 974. Article 2 states "That from and after the signing of this treaty, hostilities between the contracting parties shall cease, and perpetual peace and friendship shall exist * * * ."

⁴⁹⁰ Treaty of December 30, 1849, 9 Stat. 984.

⁴⁹¹ An agreement with the Comanche, Ioni, Anadaca, Caddo, etc., on May 15, 1846, 9 Stat. 844, negotiated in Texas shortly after the Republic had become a member of the Union actually antedates these. The first articles of all three agreements acknowledge the jurisdiction of the United States.

⁴⁹² Treaty of September 17, 1851, 11 Stat. 749. Three of these tribes—the Assiniboines, the Arapahoes, and the Gros Ventres—were treating with the United States for the first time, See Rept. Comm. Ind. Aff. (1852), pp. 299-300.

⁴⁹³ 45 C. Cis. 177 (1910),

stampede. Soon this newly admitted state was faced with the familiar problem of keeping available for preemption purposes an ample supply of public land. An equally familiar solution was quickly decided upon. Congress appropriated $25,0.0 and dispatched commissioners to treat with the California Indians regarding the territory they occupied.⁴⁹⁴

Some 18 treaties with 18 California tribes were negotiated by these federal agents in 1851. All of them provided for a surrender of native holdings in return for small reservations of land elsewhere. Other stipulations made the Indians subject to state law.⁴⁹⁵

When the terms of these various agreements became known the California State Legislature formally protested the granting of any lands to the Indians. The reasons for this opposition were reviewed by the President and the Secretary of the Interior, and finally a number of months after the agreements had been negotiated they were submitted to the Senate of the United States for ratification. This was refused on July 8, 1852.⁴⁹⁶

The Indians, however, had already begun performance of their part of the agreement. Urged by government officials to anticipate the approval of the treaties they had started on the journey to the proposed reservations. Now they found themselves in the unfortunate position of having surrendered their homes for lands which were already occupied by settlers and regarding which the Federal Government showed no willingness to take action. This situation was never remedied unless the creation in the 1920's of several small reservations for the use of these Indians can be said to have done so.⁴⁹⁷

In 1852 the Apaches, occupying portions of the territory relinquished by Mexico, were invited to a Treaty Council at Santa Fe, New Mexico. They came and duly promised perpetual peace (Art. 2) with the United States.⁴⁹⁸ They also engaged (Art. 5) to refrain from warlike incursions into Mexico.

The following year the Comanches, Kiowas, and Apaches met at Fort Atkinson. An agreement very similar in substance to the Santa Fe Treaty was concluded July 27, 1853.⁴⁹⁹

Although the number of families traveling the Oregon trail had increased steadily during the 40's, no agreements were made with the Indians of the territory until 1853. Then, in September of that year, the Rogue River Indians signed a treaty with the United States providing for a substantial cession of land (Art. 1) from which a certain portion was to be reserved for a temporary home until such time as a permanent residence should be designated by the President of the United States (Art. 2).⁵⁰⁰ A similar arrangement was made with another Oregon tribe, the Cow Creek Band, on September 19, 1853.⁵⁰¹

While these first treaties were being signed with the Indian tribes of the Far West, agreements with other tribes were being negotiated. Eight treaties⁵⁰¹ providing for territorial cessions

⁴⁹⁰ Act of September 30, 1850, 9 Stat. 544, 558.

⁴⁹¹ Wise, op. cit., p. 419.

⁴⁹² *Ibid.*, pp. 421-425.

⁴⁹³ *Ibid.*, p. 426. Cf. Act of May 18, 1928, 45 Stat. 602, conferring jurisdiction over California Indian claims upon Court of Claims.

⁴⁹⁴ Treaty of July 1, 1852, 10 Stat. 979.

⁴⁹⁵ Treaty of July 27, 1853, 10 Stat. 1013.

⁴⁹⁶ Treaty of September 19, 1853, 10 Stat. 1018. Construed in *Ross, Ex'r v. United States and Rogue River Indians*, 29 C. C. Is. 176 (1894). By the treaty of November 15, 1854, 10 Stat. 1119, the Rogue River Indians agreed to permit other tribes and bands, under certain conditions, to reside on their reservation (Art. 1).

⁴⁹⁷ Treaty of September 19, 1853, 10 Stat. 1027.

⁴⁹⁸ Treaty of January 14, 1846, with Kansas Tribe, 9 Stat. 842; Treaty of August 2, 1847, with Chippewa of the Mississippi and Lake Superior, 9 Stat. 904; Treaty of August 21, 1847, with Pillager Band of Chippewa Indians, 9 Stat. 908; Treaty of August 6, 1848, with Pawnees, 9 Stat. 919; Treaty of April 1, 1850, with Wyandot Nation of Indians, 9 Stat. 987; Treaty of July 23, 1851, with Sioux-Sisseton and Wahpeton Bands, 10 Stat. 949.

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63

and 10 treaties⁵⁰² stipulating for removal of the Indians to unoccupied land were signed during these years.

### G. EXPERIMENTS IN ALLOTMENT:⁵⁰³ 1854-61

On March 24, 1853, George W. Manypenny, of Ohio, became Commissioner of Indian Affairs. The new official was designated by the President to enter into negotiations with the tribes west of the states of Missouri and Iowa for white settlement on their land, and extinguishment of their title.⁵⁰⁴

His first success in this connection was with the Ottos and Missourias on March 15, 1854.⁵⁰⁵ Article 6 of the instrument signed on that occasion provides:

> The President may, from time to time, at his discretion, cause the whole of the land herein reserved * * * to be surveyed off into lots, and assign to such Indian or Indians of said confederate tribes, as are willing to avail [themselves] of the privilege, and who will locate on the same as a permanent home, if a single person over twenty-one years of age, one eighth of a section; to each family of two, one quarter section; to each family of three and not exceeding five, one half section; to each family of six and not exceeding ten, one section; and to each family exceeding ten in number, one quarter section for every additional five members. And he may prescribe such rules and regulations as will secure to the family, in case of the death of the head thereof, the possession and enjoyment of such permanent home and the improvements thereon. And the President may, at any time in his discretion, after such person or family has made a location on the land assigned for a permanent home, issue a patent to such person or family for such assigned land, conditioned that the tract shall not be alienated or leased for a longer term than two years; and shall be exempt from levy, sale, or forfeiture, which conditions shall continue in force until a State constitution embracing such land within its boundaries shall have been formed, and the legislature of the State shall remove the restrictions. And if any such person or family shall at any time neglect or refuse to occupy and till a portion of the land assigned, and on which they have located, or shall rove from place to place, the President may, if the patent shall have been issued, revoke the same, or if not issued, cancel the assignment, and may also withhold from such person of family, their proportion of the annuities or other moneys due them, until they shall have returned to such permanent home, and resumed the pursuits of industry; and in default of their return, the tract may be declared abandoned, and thereafter assigned to some other person or family of such confederate tribes, or disposed of as is provided for the disposal of the excess of said land. And the residue of the land hereby reserved, after all the Indian persons or families of such confederate tribes shall have had assigned to them permanent homes, may be sold for their benefit, under such laws, rules, or regulations as may hereafter be prescribed by the Congress or President of the United States. No State legislature shall remove the restriction herein provided for without the consent of Congress.

This treaty, like many other treaties negotiated during the administration of Commissioner Manypenny, included a clause

(Art. 3) by which the Indians relinquished all claims to moneys due under earlier treaties. The policy of paying Indians for lands by means of permanent annuities, which had involved the conservation of the Indian estate, was thrown into discard, and there was substituted a policy of quick distribution of tribal funds, parallel to the quick distribution of tribal lands which allotment entailed. Underlying this policy of quick distribution was the assumption that tribal existence was to be brought to an end within a short time.

On March 16, 1854, an agreement similar in its recitals regarding allotments was concluded with the Omahas.⁵⁰⁶

A third treaty providing for the individualization of land holdings was signed by the Shawnee Indians on May 10, 1854.⁵⁰⁷ The terminology used in this instrument varies somewhat from that of the preceding treaties. Instead of the provision that—

> "The President may, from time to time * * * cause * * * to be surveyed off into lots, and to assign",

article 2 holds that

> all Shawnees * * * shall be entitled to * * * two hundred acres, and if the head of a family, a quantity equal to two hundred acres for each member of his or her family * * *.

Detailed provisions are also included for the assignment of individual holdings to intermarried persons, minors, orphans, adopted persons and incompetents, the latter to have the selection made by some disinterested person or persons appointed by the Shawnee Council and approved by the United States Commissioner. Further, article 8 provides that "competent" Shawnees shall receive their share of the annuity in money, but that that of the "incompetent" Indians "shall be disposed of by the President" in the manner best calculated to promote their interests, the Shawnee Council being first consulted with respect to such persons.

⁵⁰² Treaty of March 16, 1854, 10 Stat. 1043. Construed in *United States v. Celestine*, 215 U. S. 278 (1909); *United States v. Sutton*, 215 U. S. 291 (1909); *United States v. Payne*, 264 U. S. 446 (1924). By the terms of this agreement the United States under certain conditions agreed to pay the Indians $881,000 for land ceded (Arts. 4 and 5). Later it was contended by the Omaha Tribe in a case argued before the Court of Claims in 1918 that although the cession had been made, the Government had failed to pay anything. This the Government admitted but contended that the Omaha Indians did not own and did not have the right to make a cession thereof. In finding for the plaintiff the court said: "At the time the treaty was made the United States recognized the Omahas as having title to this land north of the due west line and specifically promised to pay for it * * * the Defendants cannot now be heard to say that the Indians did not own the land when the treaty was made and had no right to make a cession of it." *Omaha Tribe v. United States*, 53 C. Cls. 549, 560 (1918), mod. 253 U. S. 275, 55 C. Cls. 521.

⁵⁰³ Treaty of May 10, 1854, 10 Stat. 1053. Construed in *Walker v. Henshaw*, 16 Wall. 436 (1872); *United States v. Blackfeather*, 155 U. S. 180, 186-187 (1894); *Jones v. Meehan*, 175 U. S. 1 (1899); *Blackfeather v. United States*, 100 U. S. 368 (1903); and *Dunbar v. Greene*, 198 U. S. 166 (1905). Commenting on this treaty, the Supreme Court declared: The treaty of 1854 left the Shawnee people a united tribe, with a declaration of their dependence on the National government for protection and the vindication of their rights. Ever since this their tribal organization has remained as it was before. * * * While the general government has a superintending care over their interests, and continues to treat with them as a nation, the State of Kansas is estopped from denying their title to it. She accepted this status when she accepted the act admitting her into the Union. Conferring rights and privileges on these Indians cannot affect their situation, which can only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization. As long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of State laws.

⁵⁰⁴ *The Kansas Indians*, 5 Wall. 737, 756-757 (1866).

⁵⁰⁵ *Dawares* Treaty of May 6, 1854, 10 Stat. 1048; *Ioways* Treaty of May 17, 1854, 10 Stat. 1069; *Sacs and Fox of the Missouri*, Treaty of May 18, 1854, 10 Stat. 1074; *Kickapoos*, Treaty of May 18, 1854, 10 Stat. 1078; *Kaskaskias*, *Peorias*, etc., Treaty of May 30, 1854, 10 Stat. 1082; *Miamis*, Treaty of June 5, 1854, 10 Stat. 1093.

⁵⁰⁵ Treaty of November 28, 1840, with Miami, 7 Stat. 582; Treaty of March 17, 1842, with Wyandot, 11 Stat. 581; Treaty of October 4, 1842, with Chippewa Indians of the Mississippi and Lake Superior, 7 Stat. 591; Treaty of October 11, 1842, with Sac and Foxes, 7 Stat. 596; Treaty of June 5 and 17, 1846, with Pottowautomic, 9 Stat. 853; Treaty of October 18, 1848, with Menomonee, 9 Stat. 952; Treaty of November 24, 1848, with Stockbridge, 9 Stat. 955; Treaty of March 15, 1854, with Ottos and Missourias, 10 Stat. 1038.

⁵⁰⁶ Prior to 1854, several treaties were signed which provided for the allotment of lands. See Chapter 11, sec. 1A; Chapter 8, sec. 2A1. Several early treaties used the words "allot" and "allotted" but they referred to the assignment of lands to groups of Indians. Kinney, A Continent Lost—A Civilization Won (1937), pp. 82-83.

⁵⁰⁷ Rept. of the Comm. of Ind. Aff. (1853), p. 249.

⁵⁰⁸ Treaty of March 15, 1854, 10 Stat. 1038.

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Six treaties⁵⁰⁰ stipulating allotment of land in severally were concluded by Commissioner Manypenny in the next 2 months. In one of these, provision is made for the setting up of a permanent fund with the proceeds from the sale of the lands ceded by the Indians. The United States is charged with the duty of administering this fund. The extent of this obligation was determined by the Court of Claims which held in the *Delaware Tribe v. The United States* that the intended trust related to the preservation of the principal received from the sale of the lands and could not be considered, as the *Delaware Tribe* claimed, an obligation to maintain unimpaired the face value of the securities in which the principal had been first invested.⁵⁰¹

In the autumn of 1854 the Chippewa of Lake Superior became a party to a treaty providing for the allotment of land to individual Indians by the President at his discretion, and with the power to make

* * * rules and regulations, respecting the disposition of the lands in case of the death of the head of a family, or single person occupying the same, or in case of its abandonment by them.⁵¹²

Article 2 also provides for the patenting of 80 acres to each mixed blood over 21 years of age.

The Wyandot treaty concluded January 31, 1855⁵¹³ is particularly interesting. The first article stipulates that tribal bands are dissolved, declares the Indians to be citizens of the United States and subject to the laws thereof and of the territory of Kansas, although those who wish to be exempted from the immediate operation of such provisions shall have continued to them the assistance and protection of the United States. Article 2 provides for the cession of their holdings to the United States stipulating the "object of which cession is that the said lands shall be subdivided, assigned, and reconverted, by patent, in fee simple, in the manner hereinafter provided for, to the individuals and members of the Wyandott nation, in severally." Articles 4 and 5 provide for the most detailed method of allotment yet encountered, in which three commissioners, one from the United States and two from the Wyandott nation, were to make a distribution of lands to certain specified classes of individuals. Patents are then to issue containing an absolute and unconditional grant of fee simple to those individuals listed as "competent" by the commissioners, but for those not so listed the patents will contain certain restrictions and may be withheld by the

⁵⁰⁰ 72 C. Cls. 483 (1931).

For opinion that a patent under Art. 13 should issue to Christian Indians but it may be restricted by act of Congress after issue unless the effect would be to invalidate title of bona fide purchaser; that title of Christian Indians will not be vested in the Indians comprising the tribe called by that name as tenants in common, but in the tribe itself or the nation; see 9 Op. A. G. 25 (1857). And see Chapter 15, sec. 1A.

⁵¹¹ Treaty of September 30, 1854, Art. 3, 16 Stat. 1109. construed in *Fec v. Brown*. 162 U. S. 802 (1896); *Wisconsin v. Hitchcock*, 201 U. S. 202 (1906); *Chippewa Indians of Minnesota v. United States*, 301 U. S. 358 (1937); and *Minnesota v. United States*, 305 U. S. 382 (1939).

The President is empowered by Art. 3 to issue patents with "such restrictions of the power of alienation as he may see fit to impose." A stipulation that the patentee and his heirs shall not sell, lease, or in any manner alienate said tract without the consent of the President of the United States is within the meaning of this Article. *United States v. Raiche*, 31 F. (2d) 624 (D. C. W. D. Wis., 1928). Moreover such restrictions extend to the timber on the land as well as the land itself. *Starr v. Campbell*, 208 U. S. 527 (1908).

The court in holding that state fish and game laws have no application to the Bad River Reservation because federal laws are exclusive also called attention to Art. 11 of the above treaty which gave the right to hunt and fish on lands ceded until otherwise or’er’d by the President. *In re Blackbird*, 109 Fd. 139 (D. C. W. D. Wis., 1901).

⁵¹² Treaty of January 31, 1855, 10 Stat. 1159. Construed in *Goudy v. Meath*, 203 U. S. 146, 149 (1906) (power of voluntary sale granted; land within land from taxation or forced alienation); *Walker v. Henshaw*, 16 Wall. 436, 441 (1872); *Schrimpscher v. Stockton*, 183 U. S. 290 (1992); *Conley v. Ballinger*, 216 U. S. 84 (1910).

Commissioner of Indian Affairs. None of the land thus assigned and patented is subject to taxation for a period of 5 years.

In February of 1855 the Chippewa of Minnesota and the Winnebago signed treaties⁵¹³ ceding their territorial holdings but out of which there is "reserved" and "set apart" for the Chippewas and "granted" for the Winnebagoes land for a permanent home. Further, the President is authorized whenever he deems it advisable to allot their lands in severally.

The tribes of the Far West were not overleeked in this burst of treaty-making activity. In the closing months of 1854 and the opening days of the following year six treaties⁵¹⁴ were negotiated with the Indians of Oregon, the various tribes of the Puget Sound region, etc. All of these provided for the allotment of land in severally and for reservations of territory described by such phrases as "such portions * * * as may be assigned to them," "shall be held * * * as an Indian reservation," and "district which shall be designated for permanent occupancy."

Seven more treaties providing for the assignment of land to individual Indians were negotiated during Commissioner Manypenny's administration, which ended in 1857. All of these feature extensive land cessions with certain areas either "set apart as a residence * * *" or "held and regarded as an Indian reservation" or "reserved * * * for the use and occupation."⁵¹⁵

James W. Denver, Charles E. Mix, and Alfred B. Greenwood, who successively held the position of Commissioner of Indian Affairs until the outbreak of the Civil War, were likewise committed to a treaty policy providing for allotment in severally. Under their auspices seven such agreements⁵¹⁶ were negotiated. These instruments in form and substance differ little from those of the Manypenny administration.

## H. THE CIVIL WAR: 1861-65

The four years of conflict between the states had its effect on the various Indian tribes. Violence and bloodshed had become commonplace and several Indian tribes seized the occasion to accompany demands upon the Federal Government with a display of force.⁵¹⁷ This was particularly the case in Minnesota,

⁵¹³ Treaty with the Umpqua, etc., of November 29, 1854, 10 Stat. 1125; Treaty with the Chasta, etc., of November 18, 1854, 10 Stat. 1122; Treaty with the Willamette, of January 22, 1855, 10 Stat. 1143; Treaty with the Wyandott, January 31, 1855, 10 Stat. 1159; Treaty with the Squally, etc., December 26, 1854, 10 Stat. 1132; Treaty with the Mississippi Chippewa, February 22, 1855, 10 Stat. 1165.

⁵¹⁴ Treaty of June 9, 1855, with Walla-Wallas, Cayuses, and Umatilla Tribes, 12 Stat. 945; Treaty of June 25, 1855, with Indians in middle Oregon, 12 Stat. 963; Treaty of June 9, 1855, with Yakamas, 12 Stat. 951; Treaty of June 11, 1855, with Nez Perces, 12 Stat. 957; Treaty of July 16, 1855, with Flatheads, etc., 12 Stat. 975; Treaty of July 31, 1855, with Ottawas and Chippewas, 11 Stat. 621; Treaty of August 2, 1855, with Chippewas, 11 Stat. 633.

⁵¹⁵ Mendawakanton and WahpaKoosa Bands of Sioux, Treaty of June 19, 1858, 12 Stat. 1031; Sisseeaton and Wahpaton Bands of Sioux, Treaty of June 19, 1858, 12 Stat. 1037; Winnebago, Treaty of April 15, 1859, 12 Stat. 1101; Swan Creek Chippewas and Christian Indians, Treaty of July 16, 1859, 12 Stat. 1105; Sacs and Foxes, Treaty of October 1, 1859, 15 Stat. 467; Kansas Indians, Treaty of October 5, 1859, 12 Stat. 1111; Delawares, Treaty of May 30, 1860, 12 Stat. 1129.

⁵¹⁶ Treaty of February 22, 1855, 10 Stat. 1165. Construed in *United States v. Mille Lac Band of Chippewa Indians*, 229 U. S. 498, 500, 501 (1913); *United States v. First National Bank*, 234 U. S. 245, 261 (1914) (dealing with rights of mixed blood Chippewas); *Johnson v. Gearlds*, 234 U. S. 422, 437 (1914) (discussing liquor provisions); *United States v. Minnesota*, 270 U. S. 181 (1926); and *Chippewa Indians of Minnesota v. United States*, 301 U. S. 358 (1937). Treaty of February 27, 1855, 10 Stat. 1172.

⁵¹⁷ However several treaties of allotment were negotiated during this period. Treaty of March 13, 1862, with Kansas Indians, 12 Stat. 1221; Treaty of June 24, 1862, with Ottawas, 12 Stat. 1237; Treaty of June 28, 1862, with Kickapoos, 13 Stat. 63; Treaty of June 9, 1863, with the Nez Perce, 14 Stat. 647; Treaty of October 14, 1864, with the

A HISTORY OF INDIAN TREATIES

65

where in the summer of 1862, the Sioux of the Mississippi participated in a general unsuccessful uprising against the whites.⁵¹⁷

While no treaty negotiations were attempted with the Sioux of that state, the Chippewas were called to a series of treaty councils in 1863 and 1864. Here their signatures were secured to treaties providing for removal and allotment of land in severity.⁵¹⁸

In the Far West the United States succeeded in making treaties at Fort Bridger,⁵¹⁹ Box Elder⁵²⁰ and Tuilla Valley⁵²¹ in the Utah Territory and at Ruby Valley⁵²² in the Nevada Territory with the Shoshonees; at Lapwai in the Territory of Washington with the Nez Perce;⁵²³ at Cosnejos in the Colorado Territory with the Utahs:⁵²⁴ and at Klamath Lake in Oregon with the Klamath Indians.⁵²⁵ The last mentioned were negotiating with the United States for the first time and Article 9 of the agreement signed by them included the very broad stipulation then being inserted in many treaties that

* * * They will submit to and obey all laws and regulations which the United States may prescribe for their government and conduct.

## I. POST CIVIL WAR TREATIES: 1865-71

The years immediately after the close of the Civil War were filled with Indian councils and conferences. Usually these parleys resulted in the signing of treaties in which mutual pledges of amity and friendship were prominent and frequent.

In October of 1865 the Cheyenne and Arapaho,⁵²⁶ the Apache, Cheyenne, and Arapaho,⁵²⁷ the Comanche and Kiowa⁵²⁸ met with Army officers Sanborn and Harney and signed treaties promising that peace would hereafter be maintained. A few days later eight tribes of Sioux at Fort Sully made the same promise.⁵²⁹

Klamaths, 16 Stat. 707. In addition, an agreement amendatory of the Treaty of October 5, 1859, 12 Stat. 1111 was entered into with the Kansas Indians, Treaty of March 13, 1862, 12 Stat. 1221. Also see Chapter 8, sec. 11.

⁵¹⁷ Seyn our, Story of the Red Man (1929) 268-287.

⁵¹⁸ Treaty of March 11, 1863, with Chippewa of the Mississippi and the Pillager and Lake Winibigoshish Bands, 12 Stat. 1249; Treaty of October 2, 1863, with Red Lake and Pembina Bands of Chippewa, 13 Stat. 667; Treaty of April 12, 1864, with Red Lake and Pembina Band of Chippewa, 13 Stat. 689; Treaty of May 7, 1864, with Chippewa of the Mississippi and the Pillager and Winnibagish Bands, 13 Stat. 693; Treaty of October 18, 1864, with Chippewa of Saginaw, Swan Creek, and Black River, 14 Stat. 657.

⁵¹⁹ Treaty of July 2, 1863, with Eastern Bands of Shoshonee Indians, 18 Stat. 685.

⁵²⁰ Treaty of July 30, 1863, with Northwestern Bands of Shoshonee Indians, 13 Stat. 663.

⁵²¹ Treaty of October 12, 1863, with Shoshone-Goship Bands, 13 Stat. 681.

⁵²² Treaty of October 1, 1863, with Western Bands of Shoshonee Indians, 18 Stat. 689. Art. 6 of the treaty recites:

> The said bands agree that whenever the President of the United States shall dem it expedient for them to abandon the roaming life, which they now lead, and become her men or agriculturalists, he is hereby authorized to make such reservations for their use as he may deem necessary within the country above described; and they do also hereby agree to remove their camps to such reservations as he may indicate, and to reside and remain therein.

Art. 6 of the treaty with the Shoshone-Goship Bands (see fn. 521, supra) is similar.

⁵²³ Treaty of June 9, 1863, with the Nez Perce, 14 Stat. 647.

⁵²⁴ Treaty of October 7, 1863, with Tabeguache Band of Utahs, 13 Stat. 673.

⁵²⁵ Treaty of October 14, 1864, with Klamath and Moadoc tribes and Yahoo kin Band of Snake Indians, 16 Stat. 707.

⁵²⁶ Treaty of October 14, 1865, 14 Stat. 703.

⁵²⁷ Treaty of October 17, 1865, 14 Stat. 713.

⁵²⁸ Treaty of October 18, 1865, 14 Stat. 717.

⁵²⁹ Two Kettles Band of Sioux Indians, Treaty of October 10, 1865, 14 Stat. 723; Blackfeet Band of Sioux, Treaty of October 19, 1865, 14 Stat. 655.

Immediately after the close of war, commissioners representing the President of the United States, appeared among the Five Civilized Tribes. Some of these Indians had been openly sympathetic with the rebel cause, even entering into treaties with the Confederacy. This action was seized upon by the commissioners as an indication of disloyalty; and a treaty negotiated in 1865 with the Creeks, Cherokees, Choctaws, Chickasaws, Osage, Seminoles, Senecas, Shawnee, and Quapaw tribes opens with the statement that the Indians by their defection had become liable to a forfeiture of all the guarantees which the United States had previously made to them.⁵³⁰

While this treaty was never ratified, the principle announced undoubtedly colored subsequent negotiations and is reflected in the treaties of 1866 with the Seminoles,⁵³¹ Choctaws and Chickasaws,⁵³² Creeks,⁵³³ and Cherokees.⁵³⁴ These agreements provide, among other things, for the surrender of a considerable portion of the territory occupied by the Indians; they pledge peace, general amnesty, the abolition of slavery, and the assurance of civil and property rights to freedmen, and acknowledge a large measure of control by the Federal Government over the affairs of the tribes.

The summer of 1867 found the Plains still in the grip of the Sioux War. Moreover, the Cheyenne and Arapaho, the Comanche and Kiowa had joined the belligerents, carrying hostilities over a wide area.

The Indian Peace Commission,⁵³⁵ composed of civilians and Army officers appointed "to investigate the cause of the war and to arrange for peace,"⁵³⁶ was successful in part. At Medicine Lodge Creek in Kansas, the Kiowa, Comanche, and Apache;⁵³⁷ and the Arapaho and Cheyenne⁵³⁸ promised peace, the abandonment of the chase, and the pursuit of the habits of civilized living.

In the summer of 1868, many Sioux, together with a scattering of Cheyenne and Arapaho warriors, renewed hostilities, which were terminated by the treaty of April 29, 1868.⁵³⁹ A month later the Crows⁵⁴⁰ and the Northern Arapaho and Cheyenne⁵⁴¹ put an end to hostilities in two agreements concluded May 7, 1868, and

Stat. 727; Sans Arc Band of Sioux, Treaty of October 20, 1865, 14 Stat. 731; Onkpohpah Band of Sioux, Treaty of October 20, 1865, 14 Stat. 739; Yanktonai Band of Sioux, Treaty of October 20, 1865, 14 Stat. 735; Upper Yanktonai Band of Sioux, Treaty of October 28, 1865, 14 Stat. 713; O'Gallala Band of Sioux, Treaty of October 28, 1865, 14 Stat. 747; Lower Bule Band of Sioux, Treaty of October 14, 1865, 14 Stat. 699.

The peace established by these agreements was a fleeting one. War continued with the Sioux save for a brief interruption for 2 years thereafter.

⁵³⁰ Kinney, op. cit., p. 157.

⁵³¹ Treaty of March 21, 1866, 14 Stat. 755.

⁵³² Treaty of April 28, 1866, 14 Stat. 769.

⁵³³ Treaty of June 14, 1866, 14 Stat. 785.

⁵³⁴ Treaty of July 19, 1866, 14 Stat. 799.

⁵³⁵ Established by Act of July 20, 1867, 15 Stat. 17.

⁵³⁶ Report of the Commissioner of Indian Affairs, 1868, p. 4.

⁵³⁷ Treaty of October 21, 1867, 15 Stat. 581; Treaty of October 21, 1867, 15 Stat. 589.

⁵³⁸ Treaty of October 28, 1867, 15 Stat. 593.

⁵³⁹ Treaty of April 29, 1868, 15 Stat. 635. By the Sioux treaty, the United States agreed that for every 30 children (of the said Sioux tribe who can be induced or compelled to attend school) a house should be provided and a teacher competent to teach the elementary branches of our English education should be furnished. (Quick Bear v. Leupp, 210 U. S. 50, 80 (1908).)

⁵⁴⁰ Treaty of May 7, 1868, 15 Stat. 649. Construed in Draper v. United States, 164 U. S. 240 (1896); United States v. Powers, 305 U. S. 527, 529 (1939). This treaty contains no definite provision concerning apportionment or use of waters.

⁵⁴¹ Treaty of May 10, 1868, 15 Stat. 655.

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May 10, 1868. By summer the Navajo,⁵¹² the eastern band of Shoshonee and the Bannock,⁵¹³ and the Nez Perce⁵¹⁴ had also

become signatories to treaties of peace. These were the last treaties made by the United States with Indian tribes.

⁵⁰² Treaty of June 1, 1868, 15 Stat. 667. Provision for allotment of land in severity to individuals wishing to farm is found in Art. 5 of this treaty. This agreement also contains in Art. 1 this familiar recital:

> "If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace with the United States, the Navajians shall be allowed a tract of land to be set apart for their agent and on notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws.* * *

In 1900, the Supreme Court of Arizona in holding the district court in error in denying to several Indians who had been imprisoned by the War Department a writ of habeas corpus called attention to this recital saying:

> "* * * This stipulation amounts to a covenant that bad Indians shall not be punished by the United States, except pursuant to laws

defining their offenses and prescribing the punishments therefor. While Congress by its legislation may disregard treaties, the executive branch of the government may not do so. The district court was in error in denying the writ of *habeas corpus*.

In re By-A-Lib-Le. 12 Ariz. 150, 155 (1909).

⁵⁰³ Treaty of July 3, 1868, 15 Stat. 673. Construed in *Harkness v. Hyde*, 98 U. S. 476 (1878); *Marks v. United States*, 161 U. S. 297 (1896); and *Ward v. Race Horse*, 163 U. S. 504 (1896).

In *United States v. Shoshone Tribe of Indians*, 304 U. S. 111 (1938), it was held that the right of the Shoshone Tribe in the lands set apart for it, under the treaty of July 3, 1868, with the United States, included the mineral and timber resources of the reservation; and the value of these was properly included in fixing the amount of compensation due for so much of the lands as was taken by the United States.

⁵⁰⁴ Treaty of August 13, 1868, 15 Stat. 693.

## SECTION 5. THE END OF TREATY-MAKING

The advancing tide of settlement in the years following the close of the Civil War dispelled the belief that it would ever be possible to separate the Indians from the whites and thus give them an opportunity to work out their salvation alone. Assimilation, allotment, and citizenship became the watchwords of Indian administration⁵¹⁵ and attacks on the making of treaties grew in force.⁵¹⁶

The termination of the treaty-making period was presaged by section 6 of the Act of March 29, 1867,⁵¹⁷ which provided:

> And all laws allowing the President, the Secretary of the Interior, or the commissioner of Indian affairs to enter into treaties with any Indian tribes are hereby re-pealed, and no expense shall hereafter be incurred in negotiating a treaty with any Indian tribe until an appropriation authorizing such expense shall be first made by law.

This provision marked the growing opposition of the House of Representatives to the practical exclusion of that House from control over Indian affairs. The provision in question was re-pealed a few months later⁵¹⁸ but the House continued its struggle against the Indian treaty system. Schmeckebier recounts the incidents of that struggle in these terms:

> While the Indian Peace Commission succeeded in ending the Indian wars, the treaties negotiated by it and ratified by the Senate were not acceptable to the House of Representatives. As the Senate alone ratified the treaties, the House had no opportunity of expressing its opinion regarding them until the appropriation bill for the fiscal year 1870, making appropriations for carrying out the treaties, came before it for approval during the third session of the Fortieth Congress. The items providing funds for fulfilling the treaties were inserted by the Senate, but the House refused to agree to them, and the session expired on March 4, 1869, without any appropriations being made for the Indian Office for the fiscal year beginning July 1. When the first session of the Forty-first Congress convened in March, 1869, a bill was passed by the House in the same form as at the previous session. The Senate promptly amended it to include the sums needed to carry out the treaties negotiated by the Peace Commission. The House again refused to agree but a compromise was

finally reached by which there was voted in addition to the usual appropriations a lump sum of two million dollars "to enable the President to maintain peace among and with the various tribes, bands, and parties of Indians, and to promote civilization among said Indians, bring them, where practicable, upon reservations, relieve their necessities, and encourage their efforts at self-support" (16 Stat. L., 40).

The House also insisted on the insertion of a section providing "That nothing in this act contained, or in any of the provisions thereof, shall be so construed as to rati-fy or approve any treaty made with any tribes, bands or parties of Indians since the twentieth day of July, 1867." This was rather a remarkable piece of legislation in that while it did not abrogate the treaties, it withheld its approval although the treaties had already been formally ratified and proclaimed. It had no legal effect, but merely wrote into the act the feeling of the House of Representatives. At the next session of Congress a similar section was added to the Indian appropriation act for the fiscal year 1871, with the additional provision that nothing in the act should ratify, approve, or disaffirm any treaty made since July 20, 1867, "or affirm or disaffirm any of the powers of the Executive and Senate over the subject." The entire section, however, was inadvertently omitted in the enrollment of the bill, and was not formally enacted until the passage of the appropriation act for the fiscal year 1872 (16 Stat. L., 570).

Probably one of the reasons for the refusal of the House to agree to the treaty provisions was its distrust of the administration of the Office of Indian Affairs, for it was during the debate on this bill that General Garfield made his scathing indictment of that Office. * * * (Pp. 55-56.)

*Discontinuance of treaty making, 1871.*—When the appropriation bill for the fiscal year 1871 came up in the second session of the Forty-first Congress the fight of the previous year was renewed, the Senate insisting on appropriations for carrying out the new treaties and the House refusing to grant any funds for that purpose. As the end of the session approached it appeared as if the bill would fail entirely, but after the President had called the attention of Congress to the necessity of making the appropriations, the two houses finally reconciled their differences.

The strong fight made by the House and expressions of many members of the Senate made it evident that the treaty system had reached its end, and the Indian appropriation act for the fiscal year 1872, approved on March 3, 1871 (16 Stat. L., 566), contained the following clause, tacked on to a sentence making an appropriation for the Yankton Indians: "Provided. That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided further, That nothing herein

⁵¹⁵ See Chapter 2, sec. 2, for excerpts from commissioners' reports advocating termination of the treaty system.

⁵¹⁶ *ibid*.

⁵¹⁷ 15 Stat. 7, 9. Also see Act of April 10, 1869, sec. 5, 16 Stat. 13, 40. The first annual report of the Board of Indian Commissioners submitted late in 1869, and the annual report of the Commissioner of Indian Affairs for the same year recommended the abolition of the treaty system of dealing with the tribes. Kinney, *A Continent Lost—A Civilization Won* (1937), pp. 148, 159, 160.

⁵¹⁸ Act of July 20, 1867, 15 Stat. 18.

THE END OF TREATY-MAKING

67

contained shall be construed to invalidate or impair the
obligation of any treaty heretofore lawfully made and
ratified with any such Indian nation or tribe." (P. 58.)⁵⁰

⁵⁰ Schmeek-bier, Office of Indian Affairs, 1927, pp. 56-58. Act of March 3, 1871, 16 Stat. 544, 566. R. S. § 2079, 25 U. S. C. 71. See also the statement of former Commissioner of Indian Affairs, Francis A. Walker, who wrote in 1874:

> In 1871, however, the insolence of conscious strength, and the growing jealousy of the House of Representatives towards the prerogative—arrogated by the Senate—of determining, in connec-

> tion with the executive, all questions of Indian right and title, and of committing the United States incidentally to pecuniary obligations limited only by its own discretion, for which the House should be bound to make provision without inquiry, led to the adoption, after several severe parliamentary struggles, of the declaration *... (pp. 11-12), that "hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty."* (L. 5.) (Walker, The Indian Question, 1874.)

Following this enactment, a congressional committee was appointed to prepare a compilation of treaties still in force. Act of March 3, 1873, 17 Stat. 579.

## SECTION 6. INDIAN AGREEMENTS

The substance of treaty-making was destined, however, to continue for many decades. For in substance a treaty was an agreement between the Federal Government and an Indian tribe. And so long as the Federal Government and the tribes continue to have common dealings, occasions for agreements are likely to recur. Thus the period of Indian land cessions was marked by the "agreements" through which such cessions were made.⁵¹⁰ These agreements differed from formal treaties only in that they were ratified by both houses of Congress instead of by the Senate alone.⁵¹¹ Like treaties, these agreements can be modified,⁵¹² ex-

cept that rights created by carrying the agreement into effect cannot be impaired.⁵¹³ In referring to such an agreement, Justice Van Devanter said:⁵¹⁴

> But it is said that the act of 1902 contemplated that they alone should receive allotments and be the participants in the distribution of the remaining lands, and also of the funds, of the tribe. No doubt such was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly born members of the tribe to the allotment and distribution. The difficulty with the appellants' contention is that it treats the act of 1902 as a contract, when "it is only an act of Congress and can have no greater effect." *Cherokee Intermarriage Cases*, 203 U. S. 76, 93. It was but an exertion of the administrative control of the Government over the tribal property of tribal Indians, and was subject to change by Congress at any time before it was carried into effect and while the tribal relations continued. *Stephens v. Cherokee Nation*, 174 U. S. 445, 488; *Cherokee Nation v. Hitchcock*, 187 U. S. 294; *Wallace v. Adams*, 204 U. S. 415, 423. (P. 648.)

Legislation based upon Indian consent does not come to an end with the close of the period of Indian land cessions and the stoppage of Indian land losses in 1934. For in that very year the underlying assumption of the treaty period that the Federal Government's relations with the Indian tribes should rest upon a basis of mutual consent was given new life in the mechanism of federally approved tribal constitutions and tribally approved federal charters established by the Act of June 18, 1934.⁵¹⁵ Thus, while the form of treaty-making no longer obtains, the fact that Indian tribes are governed primarily on a basis established by common agreement remains, and is likely to remain so long as the Indian tribes maintain their existence and the Federal Government maintains the traditional democratic faith that all Government derives its just powers from the consent of the governed.

⁵⁰⁰ Such agreements are exemplified by the Act of April 29, 1874, with the Utes, 18 Stat. 36; Act of July 10, 1882, with the Crows, 22 Stat. 157; Act of March 1, 1901, with the Cherokees, 31 Stat. 848. The propriety of legislation dependent upon Indian consent was questioned for a time but apparently doubts were set at rest, and the practice of legislating on the basis of Indian consent became solidly established. See G. F. Canfield, Legal Position of the Indian (1881), 15 Am. L. Rev. 21, 25.

⁵⁰¹ Thus in *Dick v. United States*, 208 U. S. 340, 359 (1908), the Supreme Court upheld the constitutionality of a prohibition against introduction of liquor into certain ceded lands, which was contained in an agreement of 1893 with the Nez Perce Tribe, as "a valid regulation based upon the treaty-making power of the United States and upon the power of Congress to regulate commerce with those Indians."

⁵⁰² Even the wording of statutes providing for the negotiation of agreements sometimes discloses their kinship with treaties. For example, the Act of May 1, 1876, 19 Stat. 41, 45, provides for the payment of a commission "to treat with the Sioux Indians for the relinquishment of the Black Hills country in Dakota Territory."

⁵⁰³ The Supreme Court in the case of *United States v. Seminole Nation*, 299 U. S. 417, 428 (1937), said:

> "That Congress had the power to change the terms of the agreement and authorize these payments, is well established. "Lone Wolf v. Hitchcock, 187 U. S. 553, 564-567."

The Attorney General has said, 26 Op. A. G. 340, 347 (1907):

> "Certainly if, as has been often adjudged, Congress may abrogate a formal treaty with a sovereign nation (Chinese Exclusion case, 130 U. S., 581; Horner v. United States, 143 U. S., 578; Fong Yue Ting v. United States, 149 U. S., 706; La Abra Silver Mining Co. v. United States, 175 U. S., 460), it may alter or repeal an agreement of this kind with an Indian tribe."

In considering whether it has been superseded by a general law, an agreement has been accorded the same status as a special law. Marlin v. Lewallen, 274 U. S. 58, 67 (1928). Accord: *Longest v. Langford*, 276 U. S. 69 (1928).

⁵⁰⁵ *Choate v. Trapp*, 224 U. S. 665, 671 (1912).

⁵⁰⁶ *Gritts v. Fisher*, 224 U. S. 640, 648 (1912), quoted with approval in *Sizemore v. Brady*, 235 U. S. 441, 450 (1914).

⁵⁰⁷ 48 Stat. 984, 25 U. S. C. 461, et seq., discussed in Chapter 4, sec. 16.