Treaties and Executive Orders, and the Dawes - Allotment Act  


Legal Principles underlying Federal Treaty - Executive Order Agreements:

1. Supreme Court ruling - Worcester v. Georgia (1832) - court recognized that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries."  The court also acknowledged the sovereign nature of Indian nations as established and recognized through treaties with the federal government.

a. The legal status of the tribal entities is acknowledged to be that of inherent "sovereign nations."   That is, state law is not applicable within reservation boundaries, unless abrogated by Congressional consent (e.g., Gaming Compacts with states).

b.  As established in Article VI Section 2 of the United States Constitution, treaties are the "supreme law of the land," are bilaterally-constructed, nation-to-nation agreements, intended to be legally binding for all time.

c Ownership of the land and the resources is to be held by the tribes unless explicitly relinquished in the language of an agreement/treaty.  For example, the ownership of a lake or river, if not explicitly granted to the United States, would remain with the tribe.  As such, the agreements entered into were not grants of rights to Indians, but rather grants of rights from Indians to the United States, i.e., "reserved rights doctrine. Property should not be taken without consent of the Indian. (United States v. Winans, 198 U.S. 371 1905)

 d.  Treaties/agreements are to be interpreted as their signers intended, i.e, "cannons of construction."

 e.   In exchange for the cession of vast tracts of land and resources, i.e. "ceded territory," the tribes would receive educational and health benefits, and other services.  Such services and allocations are thus "purchased" and "contracted" services, and not "social entitlements" or "special rights."  

 f.  Especially during the late nineteenth and much of the twentieth century, the Federal government's record of adhering to these principles was far from exemplary.  Simply because one party in an agreement did not honor the accords of that agreement does not negate the legal status and continued integrity of the agreement/treaty.

 g.  Over 400 treaties and agreements (executive orders) established between 1778-1902.   Examples of treaties: Treaty of Fort Laramie of 1851 and the Nez Perce Treaty of 1855 .

Ultimately, how sovereignty is defined and asserted is dependent on each Tribal community, and not on how the federal government or any other outside agency "recognizes" it.


2.  Assimilation and infringement of Tribal Sovereignty by US Federal government actions and accompanying processes.  The Legal Basis for Federal Assimilation Policies

a.  Congressional plenary powers, i.e., rights acknowledged by treaties can be abrogated by Congress pursuant to its plenary power (Lone Wolf v. Hitchcock, 187 U.S. 552 1903 and as exemplified in the Dawes Act of 1887 and Termination Policy of the 1950s and Public Law 280 in 1953)  

b.   Indian tribes are not foreign nations, but constitute "distinct political" communities within the United States, i.e., "domestic, dependent nations" whose relation to the US resembles that of a ward to his guardian (Supreme Court Chief Justice John Marshall in Cherokee Nation v. Georgia 1831).  Gave birth to federal trusteeship in Indian affairs.                                                               


Following the Indian Removal Act of 1830, the Federal Government re-focused its relationship with American Indians from one of securing military and economic alliances and peaceful relations between the United State and the Indian Nations, to one of limiting Tribal sovereignty, preventing military alliances between Tribes against the United States and securing ownership of Tribal lands.   Given the pressure for lands via various routes including the Oregon Trail and the completion of the transcontinental railroad, along with various gold rushes as well as ranching and farm land pressures from the vast Euro-American migration west.  

In 1849 the Federal Government moved the Bureau of Indian Affairs from the War Department to the Interior Department, from a military issue to a natural resources issue 


Coeur d'Alene Reservation: Aboriginal Territory, Executive Order of 1873, and Executive Order of 1889.  From 5 million acres to some 70,000 acres within a reservation of 345,000 acres


Map Legend:

Lakota Nation: Reserved by the 1868 Treaty for the unreserved use of the Lakota people

1876: Lakota reservation after the US stole the Black Hills

Lakota reservations after 100 years of court actions



Crow Reservation as result of Fort Laramie Treaty of 1851, some 38.5 million acres.  Federal government compensated tribes for loss of timber and buffalo destroyed by emigrants for safe passage through lands and end intertribal warfare.  First time boundaries imposed on tribes.   From Bozeman and Yellowstone Lake to the west, to the Missouri River in the north, past Miles City in the east, and Lander and Casper to the south.

In the Fort Laramie Treaty of 1868, the Crow understood the treaty to mean what was verbally agreed to, but the government agents wrote out a different agreement not verbally shared with the Crow.  The boundaries were set according to the written agreement, the tribe loosing access to their beloved Big Horn River and Mountain range, in addition to lands south of the Missouri, reducing the reservation to some 8 million acres.  The actually minutes of the treaty negotiation collaborated the Crow position.   Two years after signing, one signers, Sits-In-The-Middle-The-Land said of the treaty, "wrap it up and throw it away."

Crow Indian Reservation as of 1937, the boundaries of which were some 2.2 million acres (from that of over 38 million acres), was the result of subsequent acts of Congress and other federally imposed restrictions.  After the Allotment Act was imposed, over half the Crow lands were in the ownership of non-Indian and the Federal government.    The current enrolled population is around 9,000. 


Nez Perce Treaties and Allotment Act of 1887

Nez Perce Reservation:  Aboriginal and Usual and Accustom Lands, Treaties of 1855 and 1863, and Allotment.  From 13 million acres to 110,000 acres within a reservation of 780,000 acres


Within 45 years following the Allotment Act the federal government and non-Indians had acquired over 90 million acres of land within reservation boundaries, of the once 140 million acres of reservation lands held by Indian within the United States.   From 140 million to 50 million acres total lands controlled by Indians after Allotment.  And of those remaining held lands a "checkerboard" ownership effect resulted.  And given the "trust" relationship with the Federal Government via treaties, the ability to be a sovereign decision-maker over one's lands was removed from the Indian. 


Implications of Treaties and the Allotment Act?

Case of the Crow and Coeur d'Alene


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