The Wild Frontier (44 page)
Authors: William M. Osborn
CHAPTER 9
Some Other Aspects of the War
T
he settlement of the United States was an invasion of European citizens on the East Coast commencing in 1607. After their War of Independence, they became one people. They then continued their invasion westward until it reached the Pacific Ocean. They were opposed by Indian tribes who did not unite to repel the invasion as urged by King Philip, Joseph Brant, Pontiac, and Tecumseh. The tribes were defeated by a united, much better armed invader.
The matter of treaties was an important subject for settlers and Indians from the beginning. Powhatan chief Opechancanough signed a peace treaty with the settlers in 1632, the first of hundreds of treaties that followed. Many problems arose because of them. The first report of the Board of Indian Commissioners established by Congress in
1869
found that “the history of the government connections with the Indians is a shameful record of broken treaties and unfulfilled promises.”
1
President Rutherford B. Hayes was of the opinion that “many, if not most, of our Indian wars have had their origin in broken promises and acts of injustice on our part.”
2
Sitting Bull saw it that way too. “What treaty that the whites have kept has the red man broken? Not one. What treaty that the white man even made with us have they kept? Not one.”
3
Peter Matthiessen
charged that “the United States governments, one after another, had failed the Indian people in every moral and legal obligation.”
4
Ralph K. Andrist, author of
The Long Death
, charged that every promise made by the government “had been cynically broken.”
5
But a more considered view is given by Alan Axelrod, who observed in
Chronicle of the Indian Wars
that the fault lay with the Indians as well as the whites:
Treaties between whites and Indians were customarily violated almost as soon as they were signed.
It is all too easy to ascribe these violations to white perfidy. Indeed, this was often the case, as white governments, colonial or federal, sometimes entered into treaties in bad faith. More often, however, white treaty commissioners had reasonably good intentions and fully expected their side would abide by the terms of the agreement…. There were grave problems on the Indians’ side as well.
6
Both sides were hindered by weak governments that could not keep their peoples acting in compliance with the treaties. The United States made 389 treaties with Indian tribes. Some treaties were made again and again with the same tribe as conditions changed. No less than 42 treaties were made with the Potawatomis and an additional 42 with the Chippewa.
7
The last “treaty” with the Indians was made in 1871. Peter Matthiessen made the misleading statement that
in 1871, the government repudiated the whole concept of treaties, most of which it had already broken; since the Indians who had not been exterminated were now mostly under control, the remnants could be administered by the Department of the Interior as a “national resource.”
8
The treaty concept was changed by an act of Congress because Indian advocates (called humanitarians then) did not like the treaty system and because the House of Representatives wanted to share with the Senate authority for dealing with the Indians. Under the Constitution, the House took no part in ratifying treaties.
9
The 1871 act did not repudiate “the whole concept of treaties.” To the contrary, it expressly reaffirmed the validity of obligations incurred under earlier Indian treaties. The act provided “that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”
10
No evidence supports the conclusion that the United States broke most of its Indian treaties. Only Matthiessen, Sitting Bull, and a few others make that claim. Sitting Bull in the same statement quoted above also asserted that the Indians had broken “not one” treaty. There are many examples to the contrary, and indeed the violations are sometimes admitted by the Indians.
There is also a well-established rule of law that bears on the question of treaty-breaking by the United States. That rule is that Congress has the authority to break treaties when it wishes. Two Cherokee refused to pay taxes on tobacco required by an internal revenue act on the ground that they were exempt under a Cherokee treaty. In the
Cherokee Tobacco
case, the Supreme Court decided in 1870 that “a treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty…. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered.”
11
A
NGIE DEBO
, in her
History of the Indians of the United States
, described several methods by which individual land-grabbers (and not the government) illegally obtained the land of individual Indians:
Land-grabbers then flooded the country and obtained contracts of sale. Their methods are significant, for the identical techniques were repeated many times when Indians tried to hold land by individual title: misrepresentation, the Indian not knowing what he was signing; the use of intoxicants; the misuse of notary seals on blank instruments, to be filled in at the swindler’s convenience; outright forgery and a specialized kind, the bribing of some subservient Indian to impersonate the owner and sign in his place; and rigged probate procedure in the state courts corrupted by the general dishonesty.
12
Although Debo cited no specific cases to support her claim that individual land-grabbers illegally obtained land occupied by Indians, no one can doubt that this happened thousands of times. Laying aside what individuals illegally did to acquire land occupied by Indians, it is significant that no one explicitly claims the United States
government
illegally acquired such land. The word
explicitly
is used because of the nonspecific claims of some Indians or Indian advocates that someone, somehow, somewhere “stole” Indian land.
Land brought settlers to the New World, and land was the principal subject of the treaties. Despite the evidence that the federal government (sometimes state governments) had purchased very great quantities of
land from the Indians under treaties, Edward H. Spicer found “the feeling was strong among Indians generally that the U.S. government owed them a great deal for taking nearly all their land and for failing to live up to the many treaties as settlers moved across the continent.”
13
Indian advocate Felix Cohen was asked if the more than $800,000,000 the United States paid for lands purchased from Indians after 1790 was an honest price. He said, “The only fair answer to that question is that except in a very few cases where military duress was present, the price paid was one that satisfied the Indians.”
14
Even those sympathetic to the Indians have acknowledged that the government legally obtained substantially all of the Indian land. Wilcomb E. Washburn pointed out in
The Indian in America
that “students of the subject as diverse as Thomas Jefferson and Felix Cohen have agreed that most of the lands acquired from the native inhabitants of the present area of the United States were acquired by purchase from their original possessors.”
15
William T. Hagan, speaking of the government acquiring Indian land in
American Indians
, said, “Down to 1811 violence was not required and everything was done legally, if not ethically.”
16
Carl Waldman’s
Atlas of the North American Indian
showed clearly the areas ceded and the tribe or tribes making the cessation. These areas make up almost the entirety of the United States. Ralph K. Andrist, with reluctance and after making all the arguments the Indians made as to why they should not have been bound by the treaties ceding land, finally concluded,
The government had always been completely correct in its relations with the Indian tribes, treating them as though they were independent nations.
17
In 1946, the government set up an unprecedented judicial procedure for resolving Indian claims about land and other matters called the Indian Claims Commission Act. The act was broad and required the commission to hear almost any claim asserted by an Indian tribe or band, including
… (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cessation or otherwise, of lands owned or occupied by the claimant without the payment for
such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after the date of the approval of this Act shall be considered by the Commission.
All claims hereunder may be heard and determined by the Commission notwithstanding any statute of limitations or laches, but all other defenses shall be available to the United States.
18
This act has been invaluable to the Indians. Under it the Sioux got a $105,000,000 judgment because land had been taken from them contrary to the Constitution. The Supreme Court held that under the Fort Laramie Treaty of 1868, the Sioux were to have exclusive occupation of the Black Hills, but then that land was effectively taken from them by an 1877 act of Congress, and the Fifth Amendment required the government to make just compensation to the Sioux.
19
A few of the other judgments are $31,000,000 for the Ute, $13,000,000 for the Delaware, $7,000,000 for the Pawnee, more than $5,000,000 for the California tribes, and almost $5,000,000 for the Miami. Other important claims are pending. So far as is known, although some Indians claimed that tribes possessed their land forever, the tribes such as the Sioux who dispossessed others to get the land on which their award was based never gave any part of the award to the dispossessed tribes.
20
By 1951, 852 claims had been filed concerning more than twice the amount of land in the lower 48 states. (This resulted because of overlapping claims.) The government agreed to return 48,000 acres to the Pueblos and 21,000 acres to the Yakimas. Since 1970, the courts and Congress have returned more than 4,500,000 acres to Indians and have paid about $2,000,000,000 by way of compensation for land. The Indians did not win all their claims before the commission, but they did win 60 percent of them.
T
RIBE AFTER
tribe took by conquest land being occupied by others. A few examples: Iroquois by conquest displaced the Hurons. The Cree and Chippewa displaced the Sioux from their woodland homes in Minnesota and Wisconsin. The Sioux in turn displaced the Kiowa, Crows, Pawnee, Ioways, Omaha, Arikara, and Mandan in the West. The Navajo took the land of the Hopi.
21
We know about the purchases of the Louisiana Territory in 1803, the Florida Purchase from Spain in 1819, the Gadsden Purchase from Mexico in 1854, and the Alaska Purchase from Russia in 1867. Under international
law then and now, lands occupied by Indians in these territories purchased by treaty belonged to the government and not the Indians.
The same result obtained when the territory was conquered. In the
Mcintosh
case, plaintiffs claimed title to land in Illinois by reason of purchases from the Indians. The defendant claimed title to the same land on the basis of purchase from the government. The Supreme Court, speaking through Chief Justice John Marshall in 1823, found for the defendant, holding in part that even without a treaty, title to the Indian land was acquired by the settlers by 2 additional means:
Conquest gives a title which the Courts of the conqueror cannot deny. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Second, title by conquest on the part of the settlers themselves. “If a country has been acquired and held under it [the rule of title by conquest]; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.
22
The law of complete conquest is described in this way in the
American Jurisprudence
legal encyclopedia:
Complete conquest, by whatever mode it may be perfected, carries with it all the rights of the former government. In other words, the conqueror, by the completion of his conquest, becomes the absolute owner of the property conquered from the enemy nation or state. His rights are no longer limited to mere occupation of what he has taken in his actual possession, but they extend to all the property and rights of the conquered state,
including
even debts as well as personal and
real property
[emphasis added].
23
Under international law then and now, lands occupied by Indians in those territories
conquered
by the government belonged to the government and not to the Indians.
Although the government was entitled to take all the Indian land without compensation under the law of conquest, the fact that it chose to try to purchase that land instead was to its credit. It was also perhaps unprecedented in world history.
It is still argued by some that most of the land was taken by force without compensation. One example did occur during the Revolutionary War. After the war, in 1783, the Americans, according to Edward H. Spicer, “took over the greater part of the land of the Cayugas, Mohawks,
and Onondagas.”
24
These 3 tribes fought against the Americans during the war.
25
They were not paid for their land because of their exceptionally atrocious conduct toward the settlers. The Americans held title to this land, however, under the law of conquest.