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NATIVE TREATYMAKING. Dr. Zoltan Grossman Faculty member in Geography and Native American Studies, The Evergreen State College, Olympia, Washington “Supreme Law of the Land” (U.S. Constitution Article VI ). Doctrine of Discovery.

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Native treatymaking


Dr. Zoltan Grossman

Faculty member in Geography

and Native American Studies,

The Evergreen State College,

Olympia, Washington

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

Article VI )

Native treatymaking

Doctrine of Discovery

America defined as Terra Nullis (Empty Land)

Native subjects of one Crown (sovereign)

Native title taken through purchase or war

Native retains rights of occupancy, land use

Native treatymaking

European doctrine of “Higher Land Use”

America as sparsely

Inhabited “virgin

wilderness” (wild)

Agriculture (sedentary)

higher than hunting/

gathering (nomadic)

Justification for taking

“unused” land

Native treatymaking

Precedents forthe “Other”

Crusades against


Roman wars

against “Barbarians”

Burning of Wiccans


Expulsion of Moors (Arabs)

& Jews from Spain, 1492

English colonization

of Welsh, Scots, Irish

Native treatymaking

European view of “Noble Savage” Native Americans innocent children of nature (Rousseau);Communal ideas influenced European political thought




myth of



European settler imagery of indians as evil threat
European/settlerimagery of Indiansas evil threat

Parallels with earlier Euro.

views of pagans/ “witches”/

Satan in the forest

Civilizing the primitive savage
“Civilizing” the “Primitive” “Savage”

English Latin Meaning

Civilize Civilis “Citify; make a citizen”

Primitive Primitivus “First of its kind”

Savage Salvaticus “Of the forest”

Binary view black white view of natives as not fully human
Binary ViewBlack-white view of Natives as not fully human

  • Native as bad

    • Dangerous savage; evil threat

  • Native as good

    • Noble savage; close to nature

  • Native bad, but can be saved

    • Conversion; assimilation

  • “Pendulum” swings of federal

    Indian policy, public attitudes

Spanish colonial debate
Spanish colonial debate

  • Indians = Heathens;

    best as slaves


  • Indians can be


    (Las Casas)

European treaty law
European Treaty Law

  • Native nations legal “owners” of land, so acquisition needs to be through legal contract or treaty

    (Francisco De Vitoria, 1537)

  • British implicitly recognize Native nationhood through treaties; saw as “sovereignty” in European terms

  • European need for single tribe and “sovereign” (king) often centralizes Native bands and leadership

Early treaty making era 1770s 1830s
Early Treaty-making Era (1770s-1830s)

  • For land cessions,

    setting boundaries

  • “Civilize” Indians,

    restrict white traders

  • Only feds can make treaties

    • Recognition of nationhood

  • “Supreme Law of the Land”

    • Article VI Constitution

Treaties for cessions land transfers to u s
Treaties for cessions (Land transfers to U.S.)

  • Cessions traded land for peace (prevented war)

  • U.S. benefited from ceded lands & resources

  • If abrogate treaties, give back land? Pay for resources?

Native treatymaking

Defining set


1825 Treaty of

Prairie du Chien

unites bands

as nations, but to

prepare for

land cessions

Usufructuary use rights
Usufructuary (Use) Rights

  • Tribes could not survive on reservation resources alone,

    so treaties reserved use rights on ceded lands

    -- Hunting, fishing, gathering

  • Similar to use rights after selling private property

    • Access to fruit tree, boat landings, road, etc.

  • Some treaties further specified that services or payments were to be provided to the tribe

    • Unequal to land’s value

Annuities annual payments
Annuities (annual payments)

Ojibwe at LaPointe, Madeline Island, WI 1852

Native treatymaking


Treaties are agreements between sovereign nations.

371+ treaties signed by U.S. & Native nations to 1871, implied recognition of sovereignty.

Only federal government can negotiate a treaty;

State laws cannot impinge

Native treatymaking

Reserved Rights Doctrine

Treaties removed rights.

They did not grant them.

Tribes sold land to U.S.

under conditions.

Rights to control ceded

lands taken away.

Tribes retained some rights

practiced for centuries.

Native treatymaking

Canons of Construction

Accounts of treaty talks, translations often ambiguous; Chinook jargon used for NW treaties

Treaties must be interpreted and construed as Indians would have understood them.


shorthand for

Chinook jargon

Early u s presence
Early U.S. Presence

  • Lewis and Clark

    Astoria at Columbia mouth, 1805

  • U.S. & Britain jointly occupy

    “Oregon Country,” 1818

    American Fur Co. vs. Hudson Bay Co.

    (“Bostons” vs. “King George’s Men”)

  • Christian missionnaires

    Protestants in Walla Walla (1836-47) and

    Nez Perce; Catholics in Cowlitz, 1838

Oregon territory
Oregon Territory

  • Oregon Trail, 1843

    Huge influx of settlers

  • U.S. -British boundary, 1846

    Set at 49 degrees; British get Vancouver I.

  • Oregon Land Donation Act

    Settlers promised 320 acres each, 1850

  • Treaties fail, 1851-53

Washington territory
Washington Territory

  • Gov. Isaac Stevens, 1853

    Territorial Governor, BIA Superintendent,

    Transcontinental Railroad planner

  • Threats toward tribes to

    cede land for settlers, RR

    “Haste, high pressure, and no little

    chicanery on the part of the whites

    was predominant throughout the

    meetings from start to finish.”

    --William Brown

  • British, Meeker favored better

    trade relations with tribes

Stevens and the settlers
Stevens and the Settlers

  • Stevens declares ceded lands

    open to settlers before treaties

    made or ratified (facts on ground)

  • Land had been promised to

    both groups; dividing them

    (Settlers 1850, Tribes 1854-55)

  • U.S. Army (Gen. Wool) saw

    aggressive settlers and armed

    “Volunteers” as threat to peace

Settler colonialism
Settler Colonialism

  • Not just for resources, but for land

  • Settle poor as social “safety valve”

  • Settlers “set up” to fight indigenous peoples

Native treatymaking

Settler Colonialism Elsewhere

Whites in

Southern Africa


in Tibet

Protestants in Northern Ireland

Russians in Siberia

Israelis in West Bank

Stevens treaties
Stevens Treaties

  • 64 million acres (100,000 sq. mi.)

    ceded; tribal title extinguished,


  • < 6 million acres retained by tribes

    Goal to consolidate on 2-3 large reservations

  • Pay purchase price over 20 years

  • Supply farm tools; assumed tribes

    will assimilate

Tribes retain fishing rights
Tribes retain fishing rights

“The right of taking fish at usual and accustomed grounds

and stations is further secured to said Indians,

in common with all citizens of the United States;

and of erecting temporary houses for the purpose of curing;

together with the privilege of hunting and gathering roots and

berries on open and unclaimed lands. Provided, however,

That they shall not take shell-fish from any beds staked or

cultivated by citizens.” (Point Elliot Treaty, 1855)


  • xxxxx

Medicine creek treaty
Medicine Creek Treaty

  • Dec. 26, 1854, Nisqually Delta

  • 2.24 million acres ceded for

    $32,400 (paid over 20 years)

  • Nisqually, Puyallup, Squaxin

    each get 1,280-acre reservations

    (Nisqually put on rocky plain, not river)

  • Squaxin Island Reservation;

    each village (inlet) had own name

Nisqually Chief Leschi

refuses to sign treaty

Point elliot treaty
Point Elliot Treaty

  • Jan. 1855, Mukilteo

    (included Seattle, Everett, Bellingham)

    Settlers move in before treaty ratification.

  • Pit Muckleshoot


    vs. Duwamish


    by lumping



Point no point treaty
Point No Point Treaty

  • Jan. 1855, Hadskus

  • Treaty covers Klallams,


    Twana (Skokomish)

    Attempt to consolidate all

    on Hood Canal (Skokomish);

    Klallams resist to stay near

    Strait of Juan de Fuca

Quinault treaty
Quinault Treaty

  • July 1855, Olympia

    (Quinault, Queets, Hoh, Quileute)

  • Attempt to consolidate

    non-treaty peoples to

    south on Quinault Res.

    (Cowlitz, Chehalis, Chinook, Shoalwater)

Treaty of neah bay
Treaty of Neah Bay

  • Jan. 1855: Makah whaling &

  • sealing rights also retained

  • in treaty; essential for tribe

  • Makah whaled until

  • Non-Native industry

  • depleted whales, 1920s

  • Makah lived in Neah Bay

  • and formerly at Ozette

Treaty of walla walla

June 1855:

Plateau fishing cultures

moved to reservations off

Columbia River

Yakama, Cayuse, Umatilla,

Walla Walla river bands

Attempt to consolidate all

on Yakama Reservation;

Added Umatilla, Warm Springs in OR

Treaty of Walla Walla


Chief leschi
Chief Leschi

  • Refused to sign treaty because

    Nisqually did not have quantity

    or quality of land for survival

    (“Pushed onto reservations to die”)

  • Many local settlers respected

    and cooperated with him

  • Launched war against territorial

    government to force changes



Puget sound war 1855 56
Puget Sound War, 1855-56

Nisqually, Klickitat raid

Seattle village, warship

cannon attacks Jan. 1855

Sealth refuses to join Leschi,

alerts settlers

Muckleshoots attack along

settlements along White River

Puget sound war 1855 561
Puget Sound War, 1855-56

Yakamas defeat U.S. in

Toppenish battle, Oct. 1855

Settlers Volunteers attack

Native resisters, civilians;

Gen. Wool criticizes but is removed

Settlers kill, mutilate

Peopeo Moxmox under

(white flag of truce)

Fox island agreement aug 1856
Fox Island Agreement, Aug. 1856

Noncombatant agreement

responds to treaty grievances

Muckleshoots get land parcels

on White River

Squaxins get island

(but interned there)

Nisqually reservation
Nisqually Reservation

  • Moved to Nisqually River,

    expanded to 4,700 acres

    Lost 70% to Fort Lewis, 1917

Puyallup reservation
Puyallup Reservation

  • Expanded and moved to

    Puyallup River mouth at

    Commencement Bay

    Lost reservation land to

    railroad and settlers in

    Allotment Era

Leschi execution


Leschi execution

  • Brother Quiemuth killed

    in Governor’s office

  • Leschi arrested for killing

    of Army officer in war

  • Despite widespread support

    and two hung juries, executed

    near Fort Steilacoom, Feb. 19, 1858

  • Judges in “retrial” clear

    Leschi’s name, Dec. 2004