Custer Died For Your Sins Read online

  Some tribes signed a number of treaties. The Chippewa and Potawatomi signed over twenty treaties at one time or another. The Cherokees had a number of treaties which were basically land-cession treaties. The Sioux signed a great many treaties, primarily peace treaties. In the Far West many treaties were made, but never ratified by Congress, leaving them in a legalistic limbo.

  A glance at some of the obscure provisions of the treaties indicates that there must have been no intention on the part of the United States to keep them. The United States was obviously promising things it could not, at least politically speaking, deliver. And the curious thing about court cases which have occurred since treaty days is that legal interpretation has been traditionally pro-Indian. Treaties must be interpreted as the Indians would have understood them, the courts have ruled. Unfortunately in many cases the tribes can’t even get into court because of the ambiguous and inconsistent interpretation of their legal status.

  The concept of dependency, a favorite topic in government agencies and Congress, originally came from the Delaware Treaty of September 17, 1778. Dependency, as the term is used today, implies a group of lazy, dirty Indians loafing the day away at the agency. Indeed, this is the precise connotation which people love to give. But the actual provision in the Delaware Treaty is not a social or philosophical or even political theory of man. Rather it is a narrowly economic provision of dependency, as seen in Article V:

  Whereas the confederation entered into by the Delaware Nation and the United States renders the first dependent on the latter for all the articles of cloathing, utensils and implements of war, and it is judged not only reasonable, but indispensably necessary, that the aforesaid Nation be supplied with such articles from time to time, as far as the United States may have it in their power, by a well regulated trade . . .

  Dependency, as one can easily tell from the article, was simply a trade dependency. Nowhere was there any inkling that the tribe would eventually be classified as incompetent. Indeed, the very next article, Article VI, implies that the United States considered the Delawares as competent as any people on earth:

  . . . the United States do engage to guarantee to the aforesaid nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner as it hath been bound by former treaties, as long as they the said Delaware nation shall abide by and hold fast the chain of friendship now entered into. And it is further agreed on between the contracting parties should it for the future be found conducive for the mutual interest of both parties to invite any other tribes who have been friends to the interest of the United States, to join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress: Provided, nothing contained in this article to be considered as conclusive until it meets with the approbation of Congress.

  During the darkest days of the Revolution, in order to keep the Indians from siding with the British and completely crushing the new little nation, the United States held out equality and statehood to the Delawares and any other tribes they could muster to support the United States. But when the shooting was all over the Delawares were forgotten in the rush to steal their land.

  This promise was not only made to the Delawares. In Article XII of the Hopewell Treaty of November 28, 1785 the United States promised the Cherokee Nation:

  That the Indians may have full confidence in the justice of the United States, respecting their interest, they shall have the right to send a deputy of their choice, whenever they think fit, to Congress.

  The early dream of the Indian nations to achieve some type of peaceful compromise and enter the United States as an equal was brutally betrayed a generation later when, after winning the Supreme Court case Worcester v. Georgia, the President of the United States refused to enforce federal law and allowed the state of Georgia to overrun the Cherokee Nation. But in those days it was not uncommon for commissioners to promise the most enticing things in treaties, knowing full well that the United States would never honor them.

  Treaties initially marked off the boundaries between the lands of the Indian nations and the United States. Early treaties allowed the tribes to punish white men violating their laws and borders, but since any attempt by the tribes to exercise this right was used as an incident to provoke war, that right was soon taken away “for the Indians’ own protection.”

  Besides marking boundaries, treaties defined alliances between the United States and tribes in the eighteenth century. England and France were still very much involved in the acquisition of land and power on the continent and it was to the best advantage of the United States to have strong Indian allies to prevent a European invasion of the fledgling United States. Thus Article II of the 1791 Treaty with the Cherokees contained the provision that

  they also stipulate that the said Cherokee Nation will not hold any treaty with any foreign power, individual state, or with individuals of any state.

  When Indian people remember how weak and helpless the United States once was, how much it needed the good graces of the tribes for its very existence, how the tribes shepherded the ignorant colonists through drought and blizzard, kept them alive, helped them grow—they burn with resentment at the treatment they have since received from the United States government.

  It is as if a man had invited a helpless person to his home, fed and clothed him until he was strong and able to care for himself, only to have the person he had nursed wreak incredible havoc on the entire household. And all this destruction in the name of help. It is too much to bear.

  Treaties were originally viewed as contracts. Many treaties contain the phrase “contracting parties” and specify that each party must agree to the terms of the treaty for it to be valid. It would have seemed that, if treaties were contracts, the United States was required under the impairment of contracts or due process clause to protect the rights of the Indian tribes. Or at least it so seemed to the Cherokees, Choctaws, and other tribes who continually went to court to establish their property rights. But, although on one occasion, New Jersey was not allowed to break a contract with a band of the Delawares, the federal government has not traditionaly recognized treaties as contracts. So tribes had no recourse in the federal courts although many treaties had provided that the tribes should have rights and that the United States should stand behind the treaty provisions as guarantor.

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  Often when discussing treaty rights with whites, Indians find themselves being told that “We gave you the land and you haven’t done anything with it.” Or some commentator, opposed to the welfare state remarks, “We gave the Indians a small piece of land and then put them on the dole and they are unable to take care of themselves.”

  The truth is that practically the only thing the white men ever gave the Indian was disease and poverty. To imply that Indians were given land is to completely reverse the facts of history.

  Treaties settled disputes over boundaries and land cessions. Never did the United States give any Indian tribe any land at all. Rather, the Indian tribe gave the United States land in consideration for having Indian title to the remaining land confirmed.

  The August 13, 1802 Treaty with the Kaskaskias is one of the clearest examples of this concept. When settlement was made, it was stated in Article I that the Kaskaskias were “reserving to themselves” certain lands. Often the phrase “to live and hunt upon, and otherwise occupy as they shall see fit” was used to indicate the extent of right and lands reserved (Treaty with the Wiandot, Delaware, Ottawa, Pattawatima, and Sac, January 9, 1789). Or a passage might state that “the United States [will] never interrupt the said tribes in the possession of the lands which they rightfully claim, but will on the contrary protect them in the quiet enjoyment of the same. . .” (Treaty with the United Tribes of Sac and Fox, November 3, 1804).

  Indian rights to lands reserved by them are clearly stated in the treaties. Article II of the Treaty with the Wiandot, Delaware, Ottawa, Pattawatima
, and Sac of January 9, 1789, states that

  (the United States) do by these presents renew and confirm the said boundary line; to the end that the same may remain as a division line between the lands of the United States of America, and the lands of said nations, forever.

  And Article III of the same treaty elaborates on the Indian title to lands reserved:

  The United States of America do by these presents relinquish and quit claim to the said nations respectively, all the lands lying between the limits above described, for them the said Indians to live and hunt upon, and otherwise to occupy as they shall see fit.

  Similarly Article II of the Treaty with the Weas, October 2, 1818, stated:

  The said Wea tribe of Indians reserve to themselves the following described tract of land . . .

  The United States pledged over and over again that it would guarantee to the tribes the peaceful enjoyment of their lands. Initially tribes were allowed to punish whites entering their lands in violation of treaty provisions. Then the Army was given the task of punishing the intruders. Finally the government gave up all pretense of enforcing the treaty provisions. But it was many years before the tribes were shocked into awareness that the United States had silently taken absolute power over their lands and lives.

  It was not only a shock, but a breach of common decency when Congress decided that it had absolute power over the once-powerful tribes. When the Supreme Court also decided that such should be the policy in Lone Wolf v. Hitchcock, the silent conquest of unsuspecting tribes was complete.

  At the turn of the century an agreement was reached with the Kiowa, Comanche, and Apache tribes of Oklahoma in regard to their lands. When an act ratifying the agreement was presented before Congress in the form of a bill, a rider was placed on it which had the effect of providing for the allotment of lands in severalty to the members of the tribes and opening the remainder of their reservation to white settlement.

  The law was totally unrelated to the previous agreement with the tribes. When the controversy reached the Supreme Court—in the case of Lone Wolf, a Kiowa leader, versus Hitchcock, then Secretary of the Interior—to enjoin the Interior Department from carrying out the allotment, the Supreme Court ruled against the tribes. It laid down the principle that the tribes had no title to the land at all. Rather the land was held by the United States and the tribes had mere occupancy rights. Therefore the power of Congress to dictate conditions of life and possession on the reservations was limited only by its own sense of justice.

  That decision slammed the door on the question of morality and justice. It was like appointing a fox to guard the chicken coop. Under the theory expounded in Lone Wolf the Indians had no chance whatsoever to acquire title or rights to lands which had been theirs for centuries. And without the power to acquire rights, they were cut loose from all power to enforce agreements that were generations old.

  It had not been much over a century from the time when the United States had begged for its very existence to the time when it had broken every treaty—except the Pickering Treaty—and made the tribes beggars on their ancestral lands. Lands of which the United States had guaranteed to the tribes a free and undisturbed use became pawns in the old game of cowboys and Indians And everywhere Indians appealed for help there stood a man in chaps with a big black hat.

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  The subject of tax exemption of Indian lands is often raised. Most Indian tribes feel that they paid taxes for all time when they gave up some two billion acres of land to the United States. This, they claim, paid the bill quite a few centuries in advance. For certainly any bargain of a contract nature would have had to include the exemption of lands reserved and retained by the tribes for their own use or it would have been unreasonable to have assumed that tribes would have signed treaties.

  Furthermore there is a real question about the, right of the United States to tax Indians at all. Taxing authority and power are a function of the exercise of sovereignty. The United States never had original sovereignty over the Indian people, merely a right to extinguish the Indian title to land. Where, argue Indian people when questioned, did sovereignty come from?

  Certainly the treaties do not support the contentions of the government with respect to sovereignty. The Treaty of the United Sac and Fox tribe of November 3, 1804, is a case in point. Article I states:

  The United States receive the united Sac and Fox tribes into their friendship and protection, and the said tribes agree to consider themselves under the protection of the United States, and of no other power whatsoever.

  Here, certainly is not affirmation of sovereignty. At most it is a defense pact to protect the tribes and guarantee peace for the United States.

  Early statutes in the colonies exempted Indians from taxation in Massachusetts, Connecticut, and Virginia and some of these still exist today. Each Thanksgiving the Virginia Indians still take a turkey, deer, clams, and other treaty payments to the Governor’s mansion to fulfill their part of the treaty. The state of Virginia, at least, has kept its part of the treaty with the Virginia Indians.

  Perhaps the clearest expression of exemption from taxation is contained in the Treaty of September 29, 1817, with the Wyandot, Seneca, Delaware, Shawanese, Potawatomees, Ottawas, and Chippeway. This treaty states in Article XV that

  The tracts of land herein granted to the chiefs for the use of the Wyandot, Shawnese, Seneca and Delaware Indians, and the reserve for the Ottawa Indians, shall not be liable to taxes of any kind so long as such land continues the property of the said Indians.

  Succeeding treaties generally provided for lands to be held “as Indian lands are held.” From this practice tribes have felt that their lands were tax free and the federal government has upheld the taxation theory of the tribes, although with an added twist. Current federal theory indicates the federal government supports tax exemption on the basis of its trusteeship rather than on the basis of its long-standing treaty promises.

  Courts have generally upheld tribal claims to tax exemption. In The Kansas Indians, a Supreme Court case of the last century, Kansas was prohibited from taxing the lands of the Shawnees because they still kept their tribal entity intact and maintained their relationship with the federal government.

  Such a decision would seem to indicate that tax exemption is a general right of Indian tribes based upon their cessions of land in the last century. Later courts have found reasons for tax exemption all the way from such exotic theories as Indians being a federal activity to a vague and generalized purpose of rehabilitation of the individual Indian, whose progress would be impeded by taxation.

  Because taxation is such a nebulous and misunderstood concept, the general public usually believes that Indians get away with millions of dollars of tax-free money. In fact, as has been pointed out many times, the income from taxing the entire Navajo reservation, some sixteen million acres, would be less than the income from taxing a large bank building in downtown Phoenix.

  Another primary concern of the Indian people through the years has been the protection of their hunting and fishing rights. In the early days Indians preferred to feed themselves by hunting and fishing, and some tribes refused to move or change reservations until they were assured that there would be plenty of game available to feed their people.

  The first few years after the Revolution saw a great movement of settlers westward, and although Indians ceded land, they rarely gave up their hunting rights on the land sold. The Treaty of August 3, 1795, with the Wyandots, Delawares, Shawanoes, Ottawas, Chippewa, Putawatimes, Miamis, Eel-River, Weea’s, Kickapoos, Piankashaws, and Kaskaskias states in

  Article VII: The said tribes of Indians, parties to this treaty, shall be at liberty to hunt within the territory and lands which they have now ceded to the United States, without hinderance of molestation, so long as they demean themselves peaceably, and offer no injury to the people of the United States.

  Recent conflicts between Indian people and the states of Idaho, Washington, and Oregon hav
e stemmed from treaty provisions such as these by which Indian people reserved for themselves an easement on lands they ceded for hunting and fishing purposes. Today hunting and fishing are an important source of food of poverty-stricken Indian peoples, but they are merely a sport for white men in the western Pacific states. Yet the states insist upon harassment of Indian people in continual attempts to take by force what they promised a century earlier would be reserved for Indians forever.

  It is the actions of scattered, yet powerful groups of white men breaking the treaties that cause nearly all of the red-white tensions today. Foremost of the whites violating Indian treaties have been the fish and game departments in Washington, Oregon, Wisconsin, and Nevada and the Corps of Army Engineers.

  Recently the Supreme Court once again had an Indian fishing case before it and the decision was so vague and indecisive that neither Indians nor the state could determine the next course of action.

  The fishing controversy can be stated simply. Indians have reserved the right to hunt and fish off the reservation because there was not sufficient game on the reservations to feed their families. In the meantime, powerful sportsmen’s clubs of overweight urbanites who go into the woods to shoot at each other each fall, have sought to override Indian rights, claiming conservation as their motive.

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  Meanwhile the general public has sat back, shed tears over the treatment of Indians a century ago, and bemoaned the plight of the Indian. In many instances, when the tribes have attempted to bring their case before the public, it has turned a deaf ear, claiming that the treaties are some historical fancy dreamed up by the Indian to justify his irresponsibility.

  This despite the fact that during the period before the War of 1812 the United States government hurriedly sent emissaries to the western tribes and tried to force them to choose sides against Great Britain. Again when the life of the small nation was hanging in the balance, the United States was eager to have the support of the Indian tribes.