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What is a Treaty?


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     Sovereignty
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Sovereignty

To understand what a treaty is, we must first understand the concept of sovereignty. Sovereignty is the right of a group of people to be self-governing. Nations such as the United States, Germany, Japan, and Mexico are sovereign nations completely independent of any other political power. Within their borders, they have what is called absolute sovereignty. Sovereign countries often find it necessary to make agreements with other sovereign powers. One of the ways that they do that is to negotiate treaties. These are formal agreements between two or more sovereign powers that obligate their governments to perform certain actions embodied in the provisions of the agreement. So everyone understands and knows the provisions, the treaty is written down and signed by all the parties that negotiated and agreed to it. Treaties can have many different purposes. Some are written so that two or more countries can form an alliance against a common enemy. Other treaties are used to establish conditions for peace between nations that formerly had been at war. Still other treaties are used to cement commercial and trade relationships between different sovereign powers.

When Europeans first came to North and South America, they usually (although not always) treated the Indian tribes that they encountered as sovereign and independent political powers. The French and English both treated the Indians of North America in this respect because they saw that the Indian people had their own forms of government, their own leaders, and their own homelands. Of course, Indian governments were organized differently than European governments, but they existed nonetheless, and for this reason both the French and English entered into many treaties with the Indians.

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International Relations

While Indians did not use written treaties as Europeans did, they had similar conventions that functioned to seal agreements between different tribes. Among the Iroquois and some other groups, a council could be convened that was attended by leaders authorized by their communities to negotiate an agreement with other Indian groups. These leaders discussed and debated issues between them until they came to an oral agreement to which all parties agreed. To finalize this oral agreement, belts called wampum belts might then be exchanged. Wampum belts were made of white and purple shell beads woven into specific patterns, often in the form of a picture. Belts used to finalize agreements between Indian communities would often have images of two people shaking hands if the agreement was to form an alliance. If the agreement brought about peace between warring tribes, an image such as a peace pipe might be woven into the belt.

European and Indian customs merged after Whites arrived in North America. At treaty councils, Indians and Europeans would come to oral agreements, and then written treaties and wampum belts would be used to symbolize and finalize the agreements. The United States used these same conventions when it dealt with the Indian tribes. Moreover, the fact that the United States made treaties with the Indians was proof that Americans and their leaders saw Indian tribes as independent and sovereign nations. Indeed, the United States Constitution recognized them as such in Article 1, Section 8. The first treaty ever made by the United States was with the Delaware tribe and was made during the American Revolution in 1778. The treaty established peaceful relations between the United States and the Delaware, and the Delaware promised to aid the United States in their war for independence against Great Britain.

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Negotiations and Deception

The nature of treaty making changed dramatically after about 1832. That year, Chief Justice John Marshall of the United States Supreme Court issued his landmark decision in the case of Worcester v. Georgia. In this decision, Marshall argued that the United States no longer saw the Indian tribes as independent nations, rather they had become what he called "domestic dependent nations." They still had the sovereign power to regulate their own internal affairs, but they were increasingly dependent on the United States. Being domestic dependent nations, they could no longer make treaties with foreign powers such as Great Britain and Spain; they could only make treaties with the United States. This decision decreased tribes' sovereign power, but the United States had become so politically and militarily powerful that tribes lacked power to resist as they once had. Indeed, during the War of 1812, many tribes exercised their sovereign powers fully by allying with the British rather than the Americans. After the war, however, tribes found it more difficult to maintain their status as nations with absolute sovereignty since the United States increasingly disallowed it. In a very real sense, John Marshall's decision in 1832 simply articulated what had been the case for over fifteen years.

The United States continued to make treaties with the Indians for over thirty years after Marshall rendered his decision. Often, federal commissioners sent out to make treaties did so in good faith and attempted to honestly explain the details of the treaties. They would also include in these negotiations all tribal leaders who were authorized to make treaties. Because Indian tribes were seldom centralized politically and instead were often made up of independent and autonomous communities, it was necessary to include the leaders of each village and band to gain some semblance of tribal consent to any treaty agreements. As time went on, however, federal commissioners often lied to the Indians about the provisions of treaties. They had the tribal leaders affix their marks to the documents and only later told them about specific provisions. For example, in the 1837 Ho-chunk treaty, the Ho-chunk thought that they would be allowed to live on their tribal lands for eight years after selling them to the United States . In fact, the treaty gave them only eight months, and they were forced to leave their homes. Another deceptive trick used by treaty commissioners was to make an agreement with only one village and its leaders and then insist that the entire tribe was bound to abide in the treaty's provisions.

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Pressure to Cede Lands

The United States negotiated several different types of treaties with tribes. Some, such as the 1778 Delaware treaty, were designed to cement alliances between the United States and Indian communities. The United States also made peace treaties with tribes. After the War of 1812, the United States made several treaties with the tribes of the Midwest that had allied with the British against the Americans. The United States also brokered peace treaties between Indian tribes. The 1825 and 1830 treaties negotiated at Prairie du Chien were written to establish peace between warring tribes such as the Ho-chunk, Menominee, Santee Dakota (the Sioux), and the Sauk and Fox.

The most common United States treaties with Indian tribes were for land cessions. The U.S. was required by its own laws to purchase land from the Indians, and they did so using treaties. In these treaties, federal commissioners often used dishonest means to acquire Indian lands as they did with the Ho-chunk in 1837. Even when federal officials did not use deception, they often exerted tremendous pressure on the tribes to give up their lands. Tribes were often impoverished and heavily indebted to fur traders, and the United States often promised large sums of money and offered to pay their debts in exchange for land. Faced with economic hardship and unrelenting pressure, tribes almost always conceded and sold their lands to the United States.

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End of Treaty-Making Period

The tribes sometimes used treaties to their own benefit as well. Many Wisconsin tribes, for example, were able to pressure the United States into letting them keep part of their former lands as permanent reservations and settlement areas. In 1838, the Oneida signed a treaty with the United States that allowed them to reserve about 64,000 acre, and the Menominee and Ojibwe signed similar treaties in 1854 ceding most of their lands in Wisconsin while establishing reservations. The Stockbridge-Munsee gained their reservation via a 1856 U.S. treaty.

By the 1860s, however, the era of treaty making was coming to end. Many federal lawmakers decided that it made little sense to make treaties with Indian tribes which, in their view, were not considered independent nations in the same sense that the United States and European countries were sovereign powers. Also, the Constitution dictated that only the Senate had to approve treaties, whether made with Indian tribes or foreign countries, and the House of Representatives demanded more say in the handling of Indian affairs. Indian treaties were replaced by agreements between the United States and Indian tribes that were subject to approval by both houses of Congress. Throughout this period, the fact that the United States was willing to keep making formal agreements with the tribes demonstrated that the Indians still exercised a measure of sovereignty that the federal government recognized.

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Supreme Law of the Land

The last treaty that the United States made with an Indian tribe was in 1868. After 1871, formal agreements replaced treaties, but the treaties that had been made between the United States and the Indians were still recognized as valid. They are still recognized as such today, and the United States recognizes that the Indian tribes in the United States possess a certain measure of sovereignty. As part of the "Supreme Law of the land" according to the U.S. Constitution, the treaties must observed. Because these treaties are still in force, the provisions written into them such as establishing land reservations, off-reservation hunting and fishing rights, and the right to self-government are recognized as well.

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