Plateau Treaties/Executive Orders, War and Dawes Act
Expressions of Euro-American Cultural Values
Extinction of the Indian via spread of American Civilization over "wildness"; landownership equates with freedom; capitalism and territorial integrity
Acknowledge and "Grant" Tribal Sovereignty via seeking U.S. international politically legitimization
Processes and Pressures:
Indigenous Context: "home territories" (particular "families" associated in kinship relationship with animal, fish and plant "Peoples" of a particular area; permission must be granted for others to access) and usufruct practices (families continue to access animal, fish and plant "Peoples" so long as continue kinship relations and ethic of sharing with them).
"Discovery Doctrine" - international legal concept affirming the right of title for a colonial power to lands and resources they have "discovered," and thus invalidating indigenous claims to the land. Affirmed in the John Marshall Supreme Court in Johnson v. M'Intosh 1823, though not whole heartedly; a statement of practice. Originally traced to Pope Nicolas V and papal bull of 1452, allowing Portugal to claim lands in West Africa and extended to Spain to claim lands in New World.
Indian Removal Act of 1830 - established federal policy of control of Indian lands for federal purposes. President Jackson, Seminole Wars (1835-42) and Cherokee Trail of Tears (1836-39).
Department of Indian Affairs established in the War Department in 1834 and moved under the Interior in 1849 (from a military issue to a natural resource issue).
Oregon Territory established 1846 between 49th and 42nd Parallels (contention between Mexico, Russia, England/Canada and United States resolved). Northern part becomes Washington Territory in 1852 with 35 year-old Isaac Stevens its first governor and Indian Commissioner.
Donation Land Claim Act of 1850 (forerunner of Homestead Acts beginning in 1862), offering up to 320 acres per homesteader.
Gold and mining, and rancher and farmer pressures - Felix Aripa "the White man's greed . . . Gold becomes their God." In 1854 placer deposits discovered at mouth of Clark Fork, not far from Fort Colville. By 1860 miners prospecting along Clearwater and Salmon rivers, along with ranchers and farmers moving onto Nimíipuu lands. Some miners killed on Clark Fork and tensions rise.
Isaac Stevens coordinates 1853 survey for a railroad through northern sections of territory (leading to increased tensions), leading to the Mullan Road (completed 1862), and initiates policy to concentrate Indians into central location via treaties to open up vast territory for new settlers. Begins treaty process in 1854 to secure lands. Gustavus Sohon lithographs
Legal principles underlying the Treaties/Agreements and thus Granted Sovereignty
- Supreme Court ruling Worcester v. Georgia (1832) court recognized that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries." The court also acknowledged the sovereign nature of Indian nations as established and recognized through treaties with the federal government. The legal status of the tribal entities is acknowledged to be that of inherent "sovereign nations." That is, state law is not applicable within reservation boundaries, unless abrogated by Congressional consent (e.g., Gaming Compacts with states).
- As established in Article VI Section 2 of the United States Constitution, treaties are the "supreme law of the land," are bilaterally-constructed, nation-to-nation agreements, intended to be legally binding for all time.
- Ownership of the land and the resources is to be held by the tribes unless explicitly relinquished in the language of an agreement/treaty. For example, the ownership of a lake or river, if not explicitly granted to the United States, would remain with the tribe. As such, the agreements entered into were not grants of rights to Indians, but rather grants of rights from Indians to the United States, i.e., "reserved rights doctrine." Property should not be taken without consent of the Indian. (United States v. Winans, 198 U.S. 371 1905).
- Treaties/agreements are to be interpreted as their signers intended, i.e., "cannons of construction." See example of treaty proceedings from the Warm Springs 1855 Treaty.
- In exchange for the cession of vast tracts of land and resources, i.e. "ceded territory," the tribes would receive educational and health benefits, and other services. Such services and allocations are thus "purchased" and "contracted" services, and not "social entitlements" or "special rights."
- treaties generally include: acknowledged ceded lands; created reservation boundaries, with implicit military protection of those boundaries from unwanted settler incursion; mandating agriculture; providing farming technology and instruction; doctors and health care; constructing mills, blacksmith shops, schools, and allowing for allotment of lands at the discretion of the president; and 5 of the 11 regional treaties offered fishing, hunting, gathering in "usual and accustomed" areas" outside the reservation boundaries
- Especially during the late nineteenth and much of the twentieth century, the Federal government's record of adhering to these principles was far from exemplary. Simply because one party in an agreement did not honor the accords of that agreement does not negate the legal status and continued integrity of the agreement/treaty.
- Over 400 treaties and agreements (executive orders) established between 1778-1902.
Assimilation and infringement of Tribal Sovereignty by US Federal government actions and accompanying processes
- Congressional plenary powers, i.e., rights acknowledged by treaties can be abrogated by Congress pursuant to its plenary power (Lone Wolf v. Hitchcock, 187 U.S. 552 1903 and as exemplified in the Dawes Act of 1887 and Termination Policy of the 1950s and Public Law 280 in 1953).
- Indian tribes are not foreign nations, but constitute "distinct political" communities within the United States, i.e., "domestic, dependent nations" whose relation to the US resembles that of a ward to his guardian (Supreme Court Chief Justice John Marshall in Cherokee Nation v. Georgia 1831). Gave birth to federal trusteeship in Indian affairs.
Among key Treaties: Nez Perce Treaty of 1855 (Images of Nez Perce Treaty Council; from 13 million acres to 5 million, and after Treaty of 1863 to 780,000 and after Allotment to 110,000 acres), Yakama, Hellgate (Bitterroot Salish), Walla Walla (Cayuse, Walla Walla and Umatilla), and Executive Orders (1871 Indian Appropriation Act ends treaties): Colville (1872 to 2.9 million), Spokan (1881 to 154 thousand acres), Kalispel (1914 to 4,000 acres), Kootenay (1889 on allotted lands of Flathead Reservation and 1975 at Bonners Ferry), Coeur d'Alene Executive Order 1873 and 1889 (from 6 million acres, to 345,000 and after Allotment 70,000 acres).
Indigenous Context: welcome strangers and guests and be hospitable to them, and for extended family member behave according to an ethic of sharing. But for potential as well as proven adversaries, those necessarily outside the family, apply Coyote's "trickster ways." Combine physical skills and dexterity with a cunning and deceptive strategy to out wit your opponent before getting duped yourself. "Coyote" applied to help safeguard the welfare of the family.
- 1855 Yakama War and Kamiakin (with over 300 Yakama, Wenatchee, Spokan, Palouse, Walla Walla and Cayuse). Agent Andrew Bolan murdered, Maj. Hollar defeated near Dalles, Col. George Wright in 1856 subdues Kamiakin.
- 1858 Liet. Col. Steptoe with 150 troops and 50 Nez Perce near Rosalia, WA, with over 500 Coeur d'Alene led by Vincent, Palouse, Kalispel, Palouse, Yakama and Spokan. Col. George Wright victorious at "Battle of Four Lakes" and Battle of Spokane Prairie," and "scorched earth" policy and story of Hngwsumn and heroism.
- Nez Perce Conflict of 1877 (Otis interviews 13)
- Idaho's Forgotten War of 1975 - Kootenai of Bonner's Ferry (YouTube 10) Idaho’s Forgotten War profiles the courage and faith of 67 Idaho Kootenai people and the extraordinary woman, Amy Trice, who declared war on the United States government in 1974 to save her people. Robbed of their lands, culture, and hunting rights, the Kootenai people, move from place to place within a small isolated town called Bonners Ferry in Idaho. Far away from a way of life that no longer existed, the Kootenai people faced complete annihilation. By 1974, the Kootenai people had experienced extreme poverty. Homes given to the Kootenai’s by the Federal Government were decaying with broken windows and holes in the roof, providing minimal shelter to their owners. When a Tribal Elder freezes to death on a cold winter’s day inside his unheated home, the Elders fear it is only a matter of time before their entire Tribe disappears. This film documents the stories of the courageous young Idaho Kootenai woman and the people who experienced the war. Idaho’s Forgotten War will raise awareness about the last American Indian war declared against the U. S. Government on Sept 20, 1974. It will inspire viewers, and smaller Tribes to remain resilient in seeking Federal recognition for their people. What was once Idaho’s forgotten history, comes the true story about the Kootenai people and the woman, whose commitment would not waiver, and her courageous spirit that lead a bloodless war, and helped the Kootenai people rise out of the ashes to become a prosperous Indian Nation (from publicity).
Indigenous Context: Landscape endowed with "gifts" of sustenance, teachings and spiritual significance, embedded with camas, deer and salmon, as well as oral traditions and animal spirit guides. Gifts derived from Creator and Animal Peoples. Cultural orientation and social dynamic built around and dependent upon a deliberate transhumance movement, of receiving the "gifts" offered by the landscape during each of the seasons. No concept of private property ownership of land, or of resources thought of as an inanimate commodity obtained within a sedentary existence.
- As extension of plenary powers within treaties, the Dawes Severalty Act (General Allotment Act) of 1887. Over 90 million acres of Indigenous land transferred from Tribal hands to Euro-American hands within reservations via the Allotment Act.
- See Schitsu'umsh Allotment (Alice interviews 12). See Schitsu'umsh maps (from 6 million aboriginal acres, to 345,000 with the Executive Order of 1889 and after Allotment to 70,000 acres). Note: after successfully becoming farmers by the 1890s and prior to Allotment, continued transhumance activities of digging camas, hunting deer, picking huckleberries. After Allotment, "It broke everyone of them" (Felix Aripa).
- See Nimíipuu maps (from 13 million aboriginal acres to 5 million after Treaty of 1855, after Treaty of 1863 to 780,000 and after Allotment to 110,000 acres.)
- See Confederated Tribes of Warm Springs (Ralph interview 2). See Warm Springs maps (from 10 million aboriginal acres, to 640,000 acres after Treaty of 1855, to retaining 90% of that land after Allotment).
With the coming of smallpox, missionaries, treaty commissioners and military generals, the Indigenous healers, spiritual leaders, political headmen, and war chiefs could no longer protect their people. Old ways would need to be modified and new tactics found.