Introduction
In the late eighteenth and nineteenth centuries the People of
the Three Fires, the Chippewa, Odawa, and Potawatomi, collectively
known as the Anishinaabeg, negotiated a series of treaties with
representatives of the United States government. These treaties continue
to have force today. They affect the rights and privileges of both
Indians and Euro-Americans. This essay seeks to place these treaties
into a cultural and legal context. The essay explores the cultural
experiences and concepts that both sides brought to the negotiating
table, the issues both sides faced, how the issues were approached and
resolved, and finally a brief introduction to the long- term impact of
the treaties.
Cultural Experiences and Concepts
One of the most fundamental differences separating Indians and
Euro-Americans was in how they thought about land ownership. For the
Anishinaabeg, land was something "owned" by no one particular person.
Like the air breathed by Indians or the water in which a canoe floated,
the land was simply there to be used. Basil Johnston, a contemporary
teller of traditional Ojibway stories, illustrates this sense of
possession in his book Ojibway Ceremonies. In this volume he
relates a story called "The Council" a speech made by Chief
Mishi-Waub-Kaikaik. The Council had been called to discuss whether or
not to sign treaties with the Whites. Mishi-Waub-Kaikaik told his fellow
chiefs:
To control and possess the land as the White Man wishes
does not make sense. Can man possess a gust of the North Wind or a
measure of flowing water? Can he control a mass of clouds or a herd of
moose?
No. Do not mistake the truth. It is not man who owns the
land; it is the land that owns man. And we, the Anishnabeg, were placed
on this land. From beginning to end it nourishes us; it quenches our
thirst, it shelters us, and we follow the order of its seasons. It give
us freedom to come and go according to its nature and its extent--great
freedom when the extent is large, less freedom when it is small. And
when we die we are buried within the land that outlives us all. We
belong to the land by birth, by need, and by affection. And no man may
presume to own the land. Only the tribe can do that."
[Basil Johnston, Ojibway Ceremonies, (Lincoln: University of Nebraska Press, 1982); 1990 edition, p.169-170]
The story goes on to relate that most of the chiefs gathered at
the Council ultimately ignored Mishi-Waub-Kaik's plea and chose to sign
treaties. The decision had profound and disastrous results for the
Anishinaabeg who ultimately lost their land to white settlers and
consequently much of their way of life.
Robert Doherty, a contemporary scholar, notes that the
migratory customs of the eighteenth and nineteenth century Odawa and
Chippewa defined a system for allocating resources among tribal members.
At least in post-contact Michigan, the land was owned by the entire
community, but its use could be allocated to particular family groups.
Doherty argues that members of the two tribes had "a well developed
sense of territoriality" (p. 14) that related directly to the scarcity
of the resource being harvested. In the winter, when resources where
particularly sparse, territoriality was most pronounced, with families
having more or less exclusive rights to exploit clearly understood
hunting grounds. In contrast during the summer, when resources such as
fish were plentiful, the exclusive use of resources was unimportant and
families would gather together in large communities which would jointly
fish and feast. Thus, in Doherty's reconstruction of these two tribes
past, various forms of land use, including exclusive use, could be
granted by common understanding but true to the spirit of
Mishi-Waub-Kaik the land itself was a common possession.
If Mishi-Waub-Kaik could not understand the White man's concept
of property ownership, American law had only the most limited way to
incorporate Mishi-Waub-Kaik's views. American law divided property
rights into two types: usufructuary and fee simple. Usufructuary rights,
or the rights to harvest the "bounty" of the land such as wild animals
or wild plants without regard to personal ownership, is as close a match
as American law held to the Indian concept of ownership. Usufructuary
rights, however, were in American law always secondary to the concept of
fee simple ownership.
The concept of fee simple conveys to the owner a right to do
with the land as the owner chooses. The land is held exclusively by the
individual owner and can be used without regard to the wishes of the
community. Although in the twentieth century fee simple ownership has
been somewhat limited in practice, for example communities may pass
zoning ordinances that control the type of land use or buildings that
may be put up in a particular location, the concept of fee simple
ownership remains the basic way American law discusses the land.
It is very clear that when Indians and Euro-Americans came
together to negotiate a treaty they brought with them very different
ideas about using the land. The two communities also brought to the
negotiating table different ideas about diplomacy. Anishinaabe diplomacy
focused on a careful understanding of the past and a full airing of all
the issues to develop a consensus. The hope was that by fully
understanding the past and carefully deliberating the matter at hand
with each person's views well explained the final decision would take
into consideration everyone's needs and thus would be welcomed by all.
The process tended to be slow and consultative as befits a procedure in
which virtually everyone will speak and as broad a consensus as possible
must be built.
American representatives tended toward a more time-driven,
hierarchical approach toward negotiations. The Americans came to the
table hoping to sign a treaty in a specified and usually fairly short
period of time. Their bargainers were empowered to "cut a deal" and had
little or no need to consult before coming to an agreement. American
negotiators were to bring a signed treaty back to Washington, not a
series of questions for further discussion. Just as there was a
fundamental conceptual difference between the Anishinaabeg and the
Euro-Americans over the concept of land ownership there was also a
fundamental difference over the process through which an agreement was
to be reached.
The Issues Brought to the Table
Both Indians and Euro-Americans had clear objectives when
treaties were negotiated. For the Indians, the most fundamental issue
was finding a way to stay in their homeland and retain its use.
Continual western settlement by Euro-Americans created a crisis among
Indians. Treaty negotiations were a tool that could be used by Indians
to attempt to hold the land, delay settlement, or when faced with
inevitable White immigration, protect the tribe insofar as possible from
the consequences of settlement.
For the United States government, treaties in the Great Lakes
region had two goals. Prior to 1815, the basic objective was to maintain
the peace. At a minimum, treaties sought to assure the Indian tribes
neutrality in the ongoing rivalry between the Americans in the Old
Northwest Territory and the British in Canada. For a brief period Indian
tribes were able to play off American and British interests in order to
obtain favorable agreements. However, with the conclusion of the War of
1812, the Indians' ability to play the British against the Americans all
but vanished. In this new environment treaties were transformed from a
mechanism to maintain peace to a means through which to obtain the land.
Government negotiators sought to "extinguish" such claims as the
Indians might have to the land. This action prepared the way for the
entry of white settlers into a particular area and the legal and orderly
transfer of land ownership, as Euro-Americans understood this process,
from the government to settlers.
Context of Negotiations
In general the negotiations held between Indians and the United
States government were not conducted on a level playing field. The most
obvious difference was that negotiations frequently followed a military
defeat of the Indians or took place within a framework in which the
Indians understood that, if necessary, the United States government
would resort to military force. For example, The Battle of Fallen
Timbers, which occurred in northern Ohio in 1794, represented a major
military setback for the Indian tribes of the Great Lakes. It preceded
and set the tone for the Treaty of Fort Greenville in 1795.
Despite the fact that superior military force usually rested
with the United States government, the federal government was often
reluctant to resort to war. Wars were bloody, unpredictable, expensive,
delayed settlement, and were often politically unpopular in the East.
Far better, from the government's view, was a negotiated settlement that
offered the Indians modest concessions and considerations, such as
small amounts of land set aside for continued Indian use, cash
annuities, or goods and services such as agricultural equipment or the
services of a blacksmith, doctor, or teacher, in return for both peace
and the land.
When negotiations began, the Indian representatives often
realized that they would likely have to agree to keep the peace and give
up land or face an unwinnable war. Knowing from experience, however
that the "great white father" in Washington would declare war only as a
last resort, the Indians sought the greatest possible concessions from
the government that they could obtain for these pledges. The charge to
government negotiators was to obtain both peace and the land without
resorting to force and granting such concessions as was necessary to
obtain these ends.
To obtain their goals, both sides resorted to familiar
strategies. For example, the Anishnaabeg sometimes used their
traditional consultative decision-making process as a bargaining tool.
They could not agree to what the government's representatives wished,
they would say, until they returned home and discussed the matter. To
the time-driven Americans this was an unacceptable answer that was
frequently met with additional concessions if the treaty were signed
now. The United States' negotiators used a different set of strategies.
They would emphasize the hard times that had fallen upon the Indians and
offer immediate aid. Sometimes they played upon greed, or desperation,
offering choice land or special cash annuities to signers or their
immediate families. The future faced by Anishnaabeg children was often
brought up, with promises that a signed treaty would greatly increase
their prospects. Government negotiators were also engaged in "saber
rattling," threatening either directly or obliquely to use military
force if a treaty were not signed.
American Legal Understanding
of The Status of Indian Tribes and Treaties
Eventually, American force of arms become predominant and tribes
had little choice but to negotiate away large tracts of land in return
for various treaty promises. Once signed, how the American legal system
understood the process of treaty negotiation and the impact of the
signed documents became a question of great importance to Indians. Three
decisions of the Supreme Court, handed down between 1823 and 1832,
created a basis through which American law still understands Indian
treaties and their meaning. The Marshall Trilogy, three opinions written
by John Marshall that codified the understanding of Indian treaties in
American law, defined a unique status for Indian tribes within American
law.
The three cases, Johnson v. McIntosh, (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) collectively define how American law would deal with Indians. In Johnson v. McIntosh
the Court ruled that the federal government had both the responsibility
and the exclusive legal right to arrange for the transfer of land
between tribal communities and white settlers. In the case Marshall
ruled that Indian claims to the land were not held in fee simple.
Rather, he wrote, "...the Indian inhabitants are to be considered merely
as occupants, to be protected, indeed, while in peace, in the
possession of their lands, but to be deemed incapable of transferring
the absolute title to others." Marshall concluded that only the United
States itself had the right to dispose of land acquired by the nation
"through purchase or conquest." Through this decision Marshall
essentially legitimized using treaties to transfer title of the land
from Indian tribes to the federal government.
In Cherokee Nation v. Georgia Marshall more clearly
defined the nature of tribal governments within American law. Marshall
found that the tribes were not foreign nations as that phrase is
understood in the constitution and with the rights and privileges that
such a status might confer. "It may well be doubted," wrote Marshall,
"whether those tribes which reside within the acknowledged boundaries of
the United States can, with strict accuracy, be denominated foreign
nations. They may, more correctly, perhaps, be denominated domestic
dependent nations. ... Their relation to the United States resembles
that of a ward to his guardian." Marshall's decision in this case was
controversial. Of the seven judges then on the Supreme Court (one did
not vote) two found the Cherokee nation to be sovereign, two ruled that
the nation lacked any claim to sovereignty, and Marshall and one ally
staked out a middle ground, "domestic dependent" status.
In Worcester v. Georgia Marshall once again took up
his pen to define the relationship in American law between Indian tribes
and the federal government. In the case Marshall voided one of the laws
imposed by Georgia upon the Cherokee nation. Marshall ruled that, by
treaty, a relationship existed between the Cherokee tribe and the
federal government. The state of Georgia, Marhsall found, had no right
or ability to change agreements made in those treaties.
As a result of these three cases the law of the United States
recognized a unique but not wholly independent status for Indians. A
special relationship, usually codified by a treaty, existed between
tribes and the federal government. State government could not interfere
in that relationship nor could state governments impose rules and
regulations upon Native Americans not supported by treaty language.
Subsequent rulings by the courts found that in interpreting, or
in the court's phrase, "constructing," Indian treaties three rules
should apply. First, ambiguities in treaties must be resolved in favor
of the Indians. Second, Indian treaties must be interpreted as the
Indians would have understood them. Last, Indian treaties should be
liberally construed in favor of the Indians. The courts evolved these
three rules out of a recognition that treaties were a European legal
mechanism that were written in English and were negotiated on an uneven
playing field. Because the federal government had so many advantages in
negotiating treaties the burden for clearly explaining and writing
treaty language fell upon the United States. If treaties contained
ambiguities fault for those shortcomings clearly fell upon the
government officials who wrote the documents. Similarly, since treaties
were written in English the burden rested upon the government's
representatives to convey the meaning of the English words to the
Indians who participated in the negotiations. Given the handicaps of
language and power under which the Indians labored, the courts have
generally interpreted contested treaty language in favor of the Indians.
Long-Term Impact of Treaties
Although the Indian treaties effecting the Great Lakes region
were negotiated more than a century ago, the terms agreed to continue to
effect the lives of contemporary Indians and Euro-Americans. Most
obviously, Indians gave up the land. The entire structure of property
ownership as it is understood in contemporary American law flows from
that act. In return, the United States government made various promises
to the Anishinaabeg. Those promises, which might include land
allotments, educational, fishing, or hunting rights, or other
prerogatives, remain as valid today as the fee simple ownership of the
land Euro-Americans enjoy. A deal was struck, with lasting consequences
for both peoples.
Bibliography
The legal interpretations shared in this section come largely from David H. Getches and Charles F. Wilkinson, Cases and Materials on Federal Indian Law (second edition) (St. Paul: West Publishing Co., 1986). Also used was Robert Doherty, Disputed Waters: Native Americans & the Great Lakes Fishery
(Lexington: University of Kentucky Press, 1990) and an unpublished
paper written by Dr. Benjamin Ramirez-shkwegnaabi on the topic of treaty
making delivered at the Great Lakes History Conference, Grand Rapids,
October 2, 1998.