To understand what treaty rights are, it is first important to understand what a treaty is.
A treaty is an agreement between two sovereign powers. When Europeans first made contact with the Indians, they usually (although not always) treated them as sovereign, independent nations much like European nations such as France, Spain, and Great Britain. European countries made treaties with the Indian tribes principally to cement military and political alliances and to make peace. Prior to their contact with Europeans, Indians did not use written treaty agreements when they made alliances or peace with other tribes. However, they did have formal conferences whereby oral agreements were made. Usually, wampum belts were used to finalize the agreement. 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 were 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.
When Whites arrived, Indian and European customs merged. When treaties were made, Europeans and Indians would hold councils, come to oral agreements, and then written treaties and wampum belts were used to finalize the treaty. The United States used these same conventions in its dealing with the tribes. The United States made its first treaty with the Delaware in 1778. The last treaty to be made was in 1868, when the policy of making treaties with the Indian tribes ceased. After 1871, the United States instead used formal agreements between the Indians and the federal government as a replacement for treaties. The reason for this was that many White Americans believed that Indians, while still retaining much of their sovereignty, were no longer independent nations in the same sense that nations such as the United States and other countries were. Moreover, treaties only had to be ratified by the Senate in order to be approved. The House of Representatives wanted some say in the process. Even though formal agreements replaced treaties in 1871, Congress agreed that all treaties that had previously been ratified would continue to be honored by the United States.
Land Purchases and Reservations
The United States used treaties principally as means to purchase land from Indian tribes. When treaties were made, the Indians often asked for specific provisions to be written into them. Often, these provisions stipulated certain material items that the Indians were to receive from the United States in exchange for their lands. For example, when the Ho-Chunk ceded their lands in southern Wisconsin to the United States in 1829, they received $18,000 a year for 30 years, 3,000 pounds of tobacco, and 50 barrels of salt for 30 years, and an immediate gift of $30,000 in goods such as rifles, blankets, and cooking utensils at the treaty council. The United States also agreed to provide a blacksmith's shop for the Indians at Prairie du Chien for 30 years after the treaty. Other treaties signed between the United States and tribes contained similar provisions. Most were for only a limited duration, rarely exceeding 30 years.
Tribes also requested other kinds of provisions in treaties. When they sold their lands, they often wanted to retain a portion of their original holdings for a permanent home. These lands would then be reserved for them and for their use. These are called reservations for this reason. Some Indian land reservations were created for the Indians after the treaty system ended in 1871. These reservations were created in other ways but -- like reservations created under treaties -- they belong to the Indians and are protected by the federal government.
Some provisions were included in the treaties for the Indians to continue to use the land they ceded to the government. Prior to selling the land, the United States recognized the Indians' ownership of the land. They also recognized that the Indians possessed usufructuary rights to the land. Usufructuary rights were the rights of the Indians to hunt, fish, and gather forest products off of the land. In some cases, the Indians sold their lands to the United States, but they reserved their usufructuary rights. In the case of the 1837 and 1842 Ojibwe treaties, the Ojibwe bands of Wisconsin sold their homelands to the United States, but they wanted provisions added to the treaties that recognized the continuance of their usufructuary rights. Thus, they no longer owned the land, but both the United States and the Ojibwe agreed that the Ojibwe could continue to use the land for hunting, fishing, and gathering. Because they retained these rights in their treaties, these are referred to as reserved rights.
During the late 19th and early 20th centuries, these reserved rights, especially those of the Ojibwe, were not always respected. The state of Wisconsin refused to recognize the Ojibwes' off-reservation hunting and fishing rights in their ceded territory, and the federal government did not always enforce the Indians' rights as they should have. Things began to change for the Ojibwe and other tribes in the United States during the 1960s, when federal courts began to look at Indian treaty rights in a more fair and unbiased fashion. What emerged were "canons of construction," or new legal interpretations that sought to preserve rights that Indians reserved in treaties. The United States Supreme Court established these canons, which asserted that:
- treaties must be liberally construed to favor Indians;
- ambiguous expressions in treaties must be resolved in favor of the Indians;
- treaties must be construed as Indians would have understood them at the time they were negotiated;
- treaty rights legally enforceable against the United States should not extinguished by mere implication, but rather explicit action must be taken and clear and plain language used to abrogate (or abolish) them.
Ojibwe and Oneida Treaties Reaffirmed
In 1983, a federal court used these canons when it handed down an important decision that ensured that the Ojibwe would be allowed to exercise their off-reservation rights. The court did not give the Wisconsin Ojibwe the right to hunt and fish on their ceded lands; it only confirmed that they reserved those rights in their treaties and that the state of Wisconsin had been wrong to impinge upon those rights.
The Oneida have also been successful in affirming their treaty rights. A 1996 court decision confirmed their rights to fish in Duck Creek, one of their reservation boundaries. Wisconsin argued that the west bank of the creek was the reservation boundary, and thus, the Oneida were not allowed to fish in the creek without a license. A judge in Green Bay ruled otherwise, stating that the Oneida could fish on the creek's west bank free of state interference.
Other tribes have been frustrated in efforts to secure what they believe to be their legitimate treaty rights. The Menominee argued that their land cession treaties guaranteed their rights to hunt and fish on their ceded territories, but in 1996 a federal judge ruled that the tribe reserved no such rights during the treaty negotiations. Moreover, the Menominee chiefs who negotiated the treaty were not led to believe that they had done so. This is key, because even if the treaty did not specifically reserve certain rights, they may still exist if the Indians who negotiated the treaty were led to believe that such provisions were included in the treaty. The Menominee are currently deciding whether they want to appeal the decision in this case.
Lack of knowledge about treaty rights has caused a great deal of misunderstanding among non-Indians, particularly the off-reservation hunting and fishing right of the Ojibwe. During the 1980s, Whites in northern Wisconsin held emotional and often violent rallies to protest the Ojibwes' reserved treaty rights. The rancor has died down during the 1990s, but smoldering resentment still exists. There have even been calls in the last 20 years for the federal government to abrogate all reserved treaty rights of American Indians. This has not happened, and it will not happen as long as the U.S. government continues to recognize the treaties that it made with the Indian tribes.