The Corporate Indian Tribes

1. 38 Indian Treaties 39
1)<1' »F f05 21, '?S7/-/'IG-'-J CON'l-t.(/Vew Gc'~
land, which it hll/ n to ke by force. Indian treaties after the ing of treaties with Indians. This law' (Title 25, United States
War of 1812 rMI' we voluntary." Code, Section 71) declared that Indian tribes were not sover-
The Creeks d erokees, who lived in southeastern eign nations with whom the United States could make treaties.
United States. Ilfen some of the first losses. In 1814 the Since 1871 Congress has regulated Indian affairs through legis-
Creeks wen' fe ed 1 surrender twenty-three million acres of lation, greatly preferring this approach because laws, unlike
land to tIlt' fc, lral! vernment.I'' In 1835 President Andrew Indian treaties, do not need the consent of the Indians.
Jackson forl'I'1 he . erokees to sign the Treaty of New Echota, Section 71 was passed largely because the House of Repre-
in which Iho 1IV«'lp all of their land east of the Mississippi sentatives disliked its exclusion from Indian policy making.
River in Olwllllfl or land in the Oklahoma Territory. II (After Under the Constitution, treaties are made by the President
the I[(lIII w'~ si~ncd the federal government ordered the Cher- and the Senate only. The House pressured the Senate into
okees W nl IITIIto Oklahoma-the Trail of Tears, during which passing this law so that it could have a hand in formulating
mnuy Iii, rl.) Indian policy. 14
III tIlt' d,'cades that followed, white settlers and prospectors The passage of section 71 marked the end of an era. Tribes
InOYI'( westward by the thousands, and the U.S. Cavalry went were no longer considered sovereign nations by the federal
a1orW. n protect them. One by one, the government defeated
I government. This loss in status had severe consequences. Con-
IItt, J udlan tribes, forced them to sign treaties, and placed them gress no longer had to negotiate with Indians or obtain their
on n-sorvations. These reservations were often hundreds of consent in Indian matters. If Congress, for example, wanted to
lIlill~.~from their original homelands. 12 take land from the Indians, all it had to do was pass a law to
that effect.
What do Indian treaties contain?
Nearly every Indian treaty contains at least two provisions. Did section 71 repeal the earlier Indian treaties? If not, are
First, the Indians agree to relinquish land to the United States. all of these treaties valid today?
Second, the United States promises to create a federally pro- Section 71 states that "no obligation of any treaty ... shall .A
tected reservation for the Indians. Some treaties also promise be hereby invalidated or impaired." Therefore section 71 did
the Indians specific goods or services, such as medical care or not affect any existing Indian treaty. This does not mean, how-
food and clothing, but many do not. (As discussed previously, ever, that every Indian treaty is still valid. To the contrary,
the purpose of an Indian treaty was to take rights away from most treaties have been abrogated, that is, broken or breached,
Indians; treaties rarely listed the rights reserved to them.) by Congress. In 1903 the Supreme Court held in Lone Wolf v.
Almost every treaty assured the Indians that they could live HitchcocklS that Indian treaties hav..e.thesame dignity as f.e.d.eral
on their reservation permanently and would not be forced to statut~...Q.ut no greater dtwi!y. Therefore, a federal law can
move. In 1854 Senator Sam Houston described the perpetual amend or even repeal an Indian treaty in the same way that it
nature of these reservations in the following terms: " As long can amend or repeal a prior law. The Lone Wolf decision has
as water flows, or grass grows upon the earth, or the sun rises been severely criticized because it permits Congress to break
to show your pathway, or you kindle your camp fires, so long its treaty promises whenever it wants to, 16 a power it has used
shall you be protected by this Government, and never again quite often.
be removed from your present habitations. "13 Only rarely has The Supreme Court has consistently upheld the power of
the United States lived up to these promises. Cungress to break Indian treaties:7 In a recent case, for exam-
ple, the Court reviewed a treat)' ill which COllgress promised
Does the United States still make treaties with Indian never to diminish the size of n ,,-HIII'Sreservation without tIlt'
tribes? trthe's consent. Not long after th, tll'lty WIIS signed. COllgress
No. In 1871 Congress passed a law that prohibited the mak- passed a law diminishing the '(".1'1 vIII 11'111 1.11 direct violat ion 1If'