The Treaty System and How It Was Broken

The treaty system was not, in its conception, an instrument of dispossession. Under the original framework of federal Indian law, treaties were formal agreements between sovereign nations, carrying the same legal weight as treaties between the United States and foreign countries. They were negotiated, signed, and ratified by the Senate. The Constitution places ratified treaties among "the supreme law of the land." That the United States chose, repeatedly and systematically, to disregard these obligations is one of the most thoroughly documented failures of legal and moral accountability in the country's history.

How the Treaty System Worked

From the earliest years of the republic, the federal government recognised that making war against every Native nation simultaneously was neither practical nor affordable. Treaties offered an alternative: through negotiation, the government could secure land cessions and establish boundaries, in exchange for formal commitments regarding territorial protection, resource rights, annual payments, and services.

The early treaties often acknowledged the full sovereignty of the signing nations. The 1778 Treaty of Fort Pitt with the Lenape Nation, the first treaty the new United States signed with a Native nation, referred to the Lenape as a "sovereign nation" and proposed the possibility of the Lenape joining the union as a state. Later treaties were less generous in their recognition of Native sovereignty, but they continued to be structured as agreements between governmental entities rather than as declarations of subjugation.

The process through which many treaties were negotiated, however, frequently fell short of what legitimate diplomatic practice requires. Native leaders were sometimes told that the treaty terms were different from what was actually written. Alcohol was used as a negotiating tool. Signatories were sometimes individuals without the authority to bind their nations. The federal negotiators often arrived with military force nearby, and the implicit or explicit threat of violence shaped what Native leaders felt they could refuse. Treaties were sometimes signed by a small number of individuals who were then described as representing their entire nation, without those nations having participated in any deliberative process.

Despite these procedural problems, the treaties themselves were ratified and entered into the law of the land. Once ratified, they carried legal obligations that the federal government was bound to meet.

How the Obligations Were Broken

The mechanisms of treaty violation were varied. Some treaties were simply ignored as settlers pushed beyond the boundaries they established. When conflicts arose from settler encroachment, the government frequently responded not by removing the settlers but by negotiating a new treaty that ceded additional territory. The 1851 Fort Laramie Treaty established the territories of the Lakota, Cheyenne, Arapaho, Crow, and other nations across the northern plains. When gold was discovered in the Black Hills in the early 1870s, settlers flooded the region and the US Army protected their movement rather than enforcing the treaty boundary. A new agreement in 1876 extinguished Lakota claims to the Black Hills, but the circumstances under which it was signed, following military campaigns that had killed and displaced thousands of Lakota people, make the voluntary nature of that cession deeply questionable.

Congress also unilaterally altered treaty terms through legislation without the consent of the nations involved. The Indian Appropriations Act of 1871 declared that no nation or tribe would be recognised as an independent power capable of entering into a treaty, effectively ending the treaty system while leaving existing treaties in a legal limbo. The Dawes Act of 1887 restructured the land holdings established by treaty without renegotiation. The forced allotment of communally held treaty lands and the sale of "surplus" acreage directly stripped tribes of territory that treaties had guaranteed.

In other cases, promised services were delivered inadequately or not at all. Many treaties included provisions requiring the federal government to provide schools, medical services, agricultural equipment, or annual payments in exchange for land cessions. These provisions were often funded at levels far below what was required, delayed for years, or simply never implemented. The trust relationship between the federal government and tribal nations, which derives from these treaty commitments, has been the subject of litigation for well over a century.

Perhaps the most legally significant modern case of treaty violation is the Black Hills claim. In 1980, the Supreme Court ruled in United States v. Sioux Nation of Indians that the Black Hills had been taken from the Lakota without just compensation in violation of the Fifth Amendment, and awarded the nation $102 million plus interest. The Lakota refused the payment. They did not want compensation. They wanted the land. The award has sat in a federal account, accruing interest, for more than forty years. The Lakota position has been consistent: the Black Hills are not for sale.

The Legal Standing of Treaties Today

Existing treaties remain the law of the land. They have not been repealed. The rights they establish, to fish in traditional waters, to hunt on ceded territory, to receive certain services, and to exercise governmental authority within treaty-defined boundaries, are legally enforceable, and tribal nations have pursued enforcement through the federal courts with significant success.

The 1974 Boldt Decision in Washington State upheld the treaty fishing rights of Pacific Northwest tribes and held that those rights entitled them to 50 percent of the harvestable fish. The decision produced sustained opposition from non-tribal fishing interests but has been upheld in subsequent litigation. In 2018, the Supreme Court affirmed in Washington State Department of Licensing v. Cougar Den that the Yakama Nation's treaty right to travel the public highway with goods was not subject to state fuel taxes. In 2020, in McGirt v. Oklahoma, the Supreme Court held that a large portion of eastern Oklahoma had never been disestablished as reservation land and therefore remained Indian country subject to tribal jurisdiction, with implications for criminal jurisdiction that the state and federal governments have been navigating ever since.

These cases demonstrate that treaty rights are not merely historical artefacts. They are active legal tools that tribal nations use to assert and defend the specific terms of obligations the federal government undertook. The breaches of the past have not nullified the underlying obligations. The courts have recognised this repeatedly.

What the legal record also shows, however, is that enforcing treaty rights requires sustained legal and political effort over generations. The Lakota have been asserting their rights to the Black Hills for 150 years. Pacific Northwest tribes have been fighting for their fishing rights since the 19th century. The treaty system, broken as it has been in practice, remains the primary legal framework through which Native nations assert their place in the constitutional order of the United States. It is a framework built on promises that were made and not kept, and the work of keeping them, long delayed, continues.