NATION TO NATION
that the independent political status of tribal nations remained largely unimpaired. Yet this emphasis on the continuity of U.S.–American Indian diplomacy obscures the fact that the end of treaty-making was born of a dramatic assault on indigenous tribalism – one that would scourge Indian Country throughout the 19th
and early 20th century. That pro-
U.S. Sen. Eugene Casserly (D. – Calif.)
longed attack was predicated on the idea that sovereign Indian nations were anachronisms in post-Civil War America. Faced with the remains of what they considered a “vanishing race,” Americans increasingly dismissed the idea of tribes as sovereign nations capable of dealing on an equal basis with the burgeoning United States. The growing consensus about the illegitimacy of independent tribal na- tions in modern America not only fueled the abolition of treaty-making, but promoted the break-up of tribal land ownership through allotment,
legitimized federal government
forced cultural assimilation policies and pre- saged the U.S. Supreme Court’s 1903 ruling in Lone Wolf v. Hitchcock, which recognized Congress’s power to abrogate existing treaties with Indian tribes. One prescient lawmaker saw it coming. Ending the treaty system, U.S. Sen. Eugene Casserly (D. – Calif.) warned in 1871, would be “the first step in a great scheme of spolia- tion, in which the Indians will be plundered, corporations and individuals enriched, and the American name dishonored in history.” U.S. repudiation of treaties and tribalism
"ENDING THE TREATY SYSTEM WOULD BE THE FIRST STEP IN A GREAT SCHEME OF SPOLIATION, IN WHICH THE INDIANS WILL BE PLUNDERED, CORPORATIONS AND INDIVIDUALS ENRICHED, AND THE AMERICAN NAME DISHONORED IN HISTORY.”
“the whole thing is changed.” Indian tribes, he concluded, were “simply . . . not independent nations with whom we are to treat as our equals.” The United States should continue to make treaties with foreign nations, Sargent admitted, “[b]ut I deny that there can be such nations on our own soil.” These discussions occurred late in the
Congressional session, when lawmakers were working feverishly to pass appropriations bills and conclude business. Without taking the yeas and nays, lawmakers adopted a resolu- tion to prohibit further treaties with Indian tribes, tacking the measure on to the Indian Appropriations Bill of 1871, which President Grant signed into law.
44 AMERICAN INDIAN SUMMER/FALL 2014 Not one Native was asked for input. Nei-
ther Cherokee Chief William Potter Ross nor any other tribal leader was invited to render an opinion on treaty diplomacy or on the government’s responsibility to protect the autonomy of small tribal nations within the United States. Unilateralism had won the day.
IV
Legal historians have tended to downplay the significance of the 1871 treaty-making prohi- bition, arguing that prior Indian treaties re- mained in force, that the treaty-making system was merely replaced by bilateral agreements approved by both houses of Congress, and
was steadfastly opposed by American Indi- ans, who continued to identify themselves as members of autonomous, self-governing nations. Adhering to the nation-to-nation relationship that shaped early American treaty diplomacy, tribes continued to send delegations to Washington, D.C., to redress grievances with government officials. In the mid-20th
century, tribes increasingly invoked
their treaty-guaranteed rights to defend lands and life ways, and in 1972, Indian activists associated with the “Trail of Broken Trea- ties” issued a 20-point manifesto that called upon the United States to restore formal treaty-making with Indian nations. Native and non-Native legal scholars, for their part, have not only questioned the constitutionality of the 1871 treaty-ban, but also echoed calls for the restitution of treaty diplomacy. Doing so, one notes, “would be an unambiguous . . . proclamation that the United States is an ally of the tribes in their . . . battle to protect tribal sovereignty.” X
Mark Hirsch is senior historian at the National Museum of the American Indian – Smithsonian, where he has worked since 2001.
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