Understanding Indian Treaties in American History and Law

One of the most fundamental differences separating Indians and Euro-Americans was in how they thought about land ownership. For the Anishinaabeg land was something "owned" by no one particular person. Like the air breathed by Indians or the water in which a canoe floated, the land was simply there to be used. Basil Johnston, a contemporary teller of traditional Ojibway stories, illustrates this sense of possession in his book Ojibway Ceremonies. In this volume he relates a story called "The Council" a speech made by Chief Mishi-Waub-Kaikaik. The Council had been called to discuss whether or not to sign treaties with the Whites. Mishi-Waub-Kaikaik told his fellow chiefs:

"To control and possess the land as the White Man wishes does not make sense. Can man possess a gust of the North Wind or a measure of flowing water? Can he control a mass of clouds or a herd of moose?

No. Do not mistake the truth. It is not man who owns the land; it is the land that owns man. And we, the Anishnabeg, were placed on this land. From beginning to end it nourishes us; it quenches our thirst, it shelters us, and we follow the order of its seasons. It give us freedom to come and go according to its nature and its extent--great freedom when the extent is large, less freedom when it is small. And when we die we are buried within the land that outlives us all. We belong to the land by birth, by need, and by affection. And no man may presume to own the land. Only the tribe can do that."

[Basil Johnston, Ojibway Ceremonies, (Lincoln: University of Nebraska Press, 1982); 1990 edition, p.169-170]

The story goes on to relate that most of the chiefs gathered at the Council ultimately ignored Mishi-Waub-Kaik's plea and chose to sign treaties. The decision had profound and disastrous results for the Anishinaabeg who ultimately lost their land to white settlers and consequently much of their way of life.

Robert Doherty, a contemporary scholar, notes that the migratory customs of the eighteenth and nineteenth century Odawa and Chippewa defined a system for allocating resources among tribal members. At least in post-contact Michigan, the land was owned by the entire community, but its use could be allocated to particular family groups. Doherty argues that members of the two tribes had "a well-developed sense of territoriality" (p. 14) that related directly to the scarcity of the resource being harvested. In the winter, when resources were particularly sparse, territoriality was most pronounced, with families having more or less exclusive rights to exploit clearly understood hunting grounds. In contrast during the summer, when resources such as fish were plentiful, the exclusive use of resources was unimportant and families would gather together in large communities which would jointly fish and feast. Thus, in Doherty's reconstruction of these two tribes' past, various forms of land use, including exclusive use, could be granted by common understanding but true to the spirit of Mishi-Waub-Kaik the land itself was a common possession.

If Mishi-Waub-Kaik could not understand the White man's concept of property ownership, American law had only the most limited way to incorporate Mishi-Waub-Kaik's views. American law divided property rights into two types: usufructuary and fee simple. Usufructuary rights, or the rights to harvest the "bounty" of the land such as wild animals or wild plants without regard to personal ownership, is as close a match as American law held to the Indian concept of ownership. Usufructuary rights, however, were in American law always secondary to the concept of fee simple ownership.

The concept of fee simple conveys to the owner a right to do with the land as the owner chooses. The land is held exclusively by the individual owner and can be used without regard to the wishes of the community. Although in the twentieth-century fee simple ownership has been somewhat limited in practice, for example, communities may pass zoning ordinances that control the type of land use or buildings that may be put up in a particular location, the concept of fee simple ownership remains the basic way American law discusses the land.

It is very clear that when Indians and Euro-Americans came together to negotiate a treaty they brought with them very different ideas about using the land. The two communities also brought to the negotiating table different ideas about diplomacy. Anishinaabe diplomacy focused on a careful understanding of the past and a full airing of all the issues to develop a consensus. The hope was that by fully understanding the past and carefully deliberating the matter at hand with each person's views well explained the final decision would take into consideration everyone's needs and thus would be welcomed by all. The process tended to be slow and consultative as befits a procedure in which virtually everyone will speak and as broad a consensus as possible must be built.

Both Indians and Euro-Americans had clear objectives when treaties were negotiated. For the Indians, the most fundamental issue was finding a way to stay in their homeland and retain its use. Continual western settlement by Euro-Americans created a crisis among Indians. Treaty negotiations were a tool that could be used by Indians to attempt to hold the land, delay settlement, or when faced with inevitable White immigration, protect the tribe insofar as possible from the consequences of settlement.

For the United States government treaties in the Great Lakes region had two goals. Prior to 1815 the basic objective was to maintain the peace. At a minimum treaties sought to assure the Indian tribes neutrality in the ongoing rivalry between the Americans in the Old Northwest Territory and the British in Canada. For a brief period Indian tribes were able to play off American and British interests in order to obtain favorable agreements. However, with the conclusion of the War of 1812 the Indians' ability to play the British against the Americans all but vanished. In this new environment treaties were transformed from a mechanism to maintain peace to a means through which to obtain the land. Government negotiators sought to "extinguish" such claims as the Indians might have to the land. This action prepared the way for the entry of white settlers into a particular area and the legal and orderly transfer of land ownership, as Euro-Americans understood this process, from the government to settlers.

In general the negotiations held between Indians and the United States government were not conducted on a level playing field. The most obvious difference was that negotiations frequently followed a military defeat of the Indians or took place within a framework in which the Indians understood that, if necessary, the United States government would resort to military force. For example, The Battle of Fallen Timbers, which occurred in northern Ohio in 1794 represented a major military setback for the Indian tribes of the Great Lakes. It preceded and set the tone for the Treaty of Fort Greenville in 1795.

Despite the fact that superior military force usually rested with the United States government, the federal government was often reluctant to resort to war. Wars were bloody, unpredictable, expensive, delayed settlement, and were often politically unpopular in the East. Far better, from the government's view, was a negotiated settlement that offered the Indians modest concessions and considerations, such as small amounts of land set aside for continued Indian use, cash annuities, or goods and services such as agricultural equipment or the services of a blacksmith, doctor, or teacher, in return for both peace and the land.

When negotiations began, the Indian representatives often realized that they would likely have to agree to keep the peace and give up land or face an unwinnable war. Knowing from experience, however that the "great white father" in Washington would declare war only as a last resort, the Indians sought the greatest possible concessions from the government that they could obtain for these pledges. The charge to government negotiators was to obtain both peace and the land without resorting to force and granting such concessions as was necessary to obtain these ends.

To obtain their goals both sides resorted to familiar strategies. For example, the Anishnaabeg sometimes used their traditional consultative decision-making process as a bargaining tool. They could not agree to what the government's representatives wished, they would say, until they returned home and discussed the matter. To the time-driven Americans this was an unacceptable answer that was frequently met with additional concessions if the treaty were signed now. The United States' negotiators used a different set of strategies. They would emphasize the hard times that had fallen upon the Indians and offer immediate aid. Sometimes they played upon greed, or desperation, offering choice land or special cash annuities to signers or their immediate families. The future faced by Anishnaabeg children was often brought up, with promises that a signed treaty would greatly increase their prospects. Government negotiators were also engaged in "saber-rattling," threatening either directly or obliquely to use military force if a treaty were not signed.

Eventually American force of arms become predominant and tribes had little choice but to negotiate away large tracts of land in return for various treaty promises. Once signed, how the American legal system understood the process of treaty negotiation and the impact of the signed documents became a question of great importance to Indians. Three decisions of the Supreme Court, handed down between 1823 and 1832, created a basis through which American law still understands Indian treaties and their meaning. The Marshall Trilogy, three opinions written by John Marshall that codified the understanding of Indian treaties in American law, defined a unique status for Indian tribes within American law.

The three cases, Johnson v. McIntosh, (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) collectively define how American law would deal with Indians. In Johnson v. McIntosh the Court ruled that the federal government had both the responsibility and the exclusive legal right to arrange for the transfer of land between tribal communities and white settlers. In the case Marshall ruled that Indian claims to the land were not held in fee simple. Rather, he wrote, "...the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others." Marshall concluded that only the United States itself had the right to dispose of land acquired by the nation "through purchase or conquest." Through this decision, Marshall essentially legitimized using treaties to transfer the title of the land from Indian tribes to the federal government.

In Cherokee Nation v. Georgia Marshall more clearly defined the nature of tribal governments within American law. Marshall found that the tribes were not foreign nations as that phrase is understood in the constitution and with the rights and privileges that such a status might confer. "It may well be doubted," wrote Marshall, "whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. ... Their relation to the United States resembles that of a ward to his guardian." Marshall's decision, in this case, was controversial. Of the seven judges than on the Supreme Court (one did not vote) two found the Cherokee nation to be sovereign, two ruled that the nation lacked any claim to sovereignty, and Marshall and one ally staked out a middle ground, "domestic dependent" status.

In Worcester v. Georgia Marshall once again took up his pen to define the relationship in American law between Indian tribes and the federal government. In the case, Marshall voided one of the laws imposed by Georgia upon the Cherokee Nation. Marshall ruled that, by treaty, a relationship existed between the Cherokee tribe and the federal government. The state of Georgia, Marhsall found, had no right or ability to change agreements made in those treaties.

As a result of these three cases, the law of the United States recognized a unique but not wholly independent status for Indians. A special relationship, usually codified by a treaty, existed between tribes and the federal government. State government could not interfere in that relationship nor could state governments impose rules and regulations upon Native Americans not supported by treaty language.

Although the Indian treaties affecting the Great Lakes region were negotiated more than a century ago, the terms agreed to continue to affect the lives of contemporary Indians and Euro- Americans. Most obviously, Indians gave up the land. The entire structure of property ownership as it is understood in contemporary American law flows from that act. In return, the United States government made various promises to the Anishinaabeg. Those promises, which might include land allotments, educational, fishing, or hunting rights, or other prerogatives, remain as valid today as the fee simple ownership of the land Euro-Americans enjoy. A deal was struck, with lasting consequences for both peoples.