It is important as we approach the 150th anniversary of the abolition of treaty-making to consider its consequences, to measure its impact on the lives of Native people and Native nations. The congressional enactment of 1871 was less a break from the past than one more step in a long judicial and legislative attempt to erase Native peoples’ assertions of nationhood. In that sense it may have mattered less than we think it did. In New York State, for instance, much of which stood on the aboriginal homelands of the Haudenosaunee, the Six Nations of the Iroquois, the abolition of federal treaty-making mattered hardly at all.

Which is ironic, for it was a Tonawanda Seneca, and the first Native American Commissioner of Indian Affairs, who spoke so forcefully in favor of ending the practice of negotiating treaties with Native American nations. A year and a half before Congress in 1871 decided “that hereafter no Indian Nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract a treaty,” Ely Parker announced his arguments in favor of putting an end to treaty-making in his annual report.Footnote ¹

A treaty, Parker wrote, was “a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligations incurred.” Native nations, he believed, lacked this power. “The Indian tribes of the United States are not sovereign nations, capable of making treaties, as none of them have an organized government of such inherent strength as would secure a faithful obedience of its people in the observance of compacts of this character.” Ignoring the inability of the United States to compel the obedience of its own settlers, the violent and aggressive conduct and encroachment of which Commissioners of Indian Affairs and Secretaries of the Interior regularly lamented in the post-Civil War era, Parker declared that “it is time this idea should be dispelled, and the government cease the cruel farce of thus dealing with its helpless and ignorant wards.” The federal government should stop at once “deluding this people into the belief of them being independent sovereignties, while they were at the same time recognized only as its dependents and wards.”Footnote ²

Parker’s family had fought fiercely for Tonawanda land rights before the Civil War, but Parker now advocated citizenship for American Indians, supported the government’s “Civilization Program,” and rejected the sovereignty of Native nations. Each of these positions found advocates among that group of Native American leaders who historian Frederick Hoxie called “Red Progressives,” but they were anathema to Tonawanda Senecas and many Haudenosaunee people.Footnote ³ After the end of the Civil War, Parker had little influence at the Tonawanda Reservation, his current positions out of touch with his former friends and neighbors. He resigned his office in 1871 under trumped-up charges of corruption and maladministration shortly after Congress passed legislation putting an end to treaty-making.Footnote ⁴

Because “treaty talk” has played so large a role in shaping understandings of the relations between Native peoples and the United States, in New York as elsewhere, the assumption long has been that 1871 in some way mattered and marked a significant break with the past. Courts meanwhile continue to struggle to define the terms of treaties and their place in the American constitutional system. Nearly all observers agree that the United States faithlessly violated its own treaties. And Native peoples continue to assert that their nationhood and sovereignty is confirmed and recognized through Indian treaties. Justice Clarence Thomas has suggested that the 1871 enactment was unconstitutional, as the treaty-making power, he believed, is the only instrument allowed in the Constitution to limit the powers of Native nations. Thomas has long questioned the historic justifications for the so-called “plenary power” doctrine, which emerged from a 1903 Supreme Court decision that permitted the United States to unilaterally break its treaties with Native nations.Footnote ⁵

Those 370 treaties negotiated between the United States and Indian tribes before 1871 served a variety of functions. They brought peace after periods of war, or defined the bounds of lands Native nations retained or ceded. Many included provisions to “Christianize” and “civilize” Native peoples. While treaties recognized a measure of sovereignty, they also served as instruments of colonialism and control, the legal arm of dispossession. Through treaties the United States acquired rights on paper to regulate the trade and commerce of a tribe, as well as a sole and exclusive right to purchase their lands. It was through the instrument of treaties that many millions of acres of Indian lands became part of the United States.Footnote ⁶

Some of these treaties were fraudulent or deceptive, others coerced. Many extended the power of the United States over Native peoples who, the Supreme Court ruled in 1831, were best viewed not as independent and entirely sovereign governing entities but as “domestic dependent nations” whose relationship to the United States resembled that of “a ward to its guardian.”Footnote ⁷

Attempts to make treaties with Six Nations people did not end in 1871. Since the American Revolution, New York State has claimed and exercised jurisdiction over the Iroquois, sometimes with and sometimes without the sanction of federal authorities. The United States negotiated only a handful of treaties with the Six Nations: at Fort Stanwix in 1784, restoring peace after the Revolution; at Canandaigua in 1794, restoring Seneca land and recognizing the rights of the Six Nations to the “free use and enjoyment of their lands”; and at Buffalo Creek in 1838, a corrupt “removal” treaty intended to force the Iroquois to new homes in the Indian Territory. State authorities, meanwhile, negotiated many times that number, all in an effort to acquire Haudenosaunee land. New York could not become the Empire State without a systematic program of Iroquois dispossession.Footnote ⁸

In 1883, for instance, Syracuse University Chancellor Charles N. Sims led an effort to break up and allot the Onondaga Reservation through a state treaty he hoped to persuade the Onondagas to sign. Half a decade later so did the state’s Whipple Commission, which collected testimony and issued a massive report that called for the break-up of New York’s Indian reservations as one of a number of solutions to the state’s “Indian Problem.”Footnote ⁹ But Chancellor Sims’s efforts to persuade the Onondagas to sign a treaty with the state individualizing their landholdings ended in failure. When the ballots were cast, Onondagas voted nearly unanimously against it and, Sims wrote with considerable frustration, “so ended two years of work of philanthropy and diplomacy in the interest of morals, religion, liberty, and good government in the nation of the Onondagas.”Footnote ¹⁰ The Whipple Commission collected its documents, heard its testimony, and failed to achieve anything more owing to Iroquois opposition to the allotment of their lands.

The assault by state officials on Haudenosaunee nationhood began long before 1871 and continued long after. Yet in every instance, and in response to every assault, whether boarding schools or the establishment of missions or the attempts to dispossess them, Haudenosaunee people continued to assert their nationhood. They did so when they angrily resisted efforts to individualize their landholdings in 1902,Footnote ¹¹ when they declared war on their own against the Central Powers in World War I,Footnote ¹² when they opposed the Indian Citizenship Act of 1924,Footnote ¹³ resisted the Indian New deal a decade after that, and when they declared war against the Axis Powers in their own name in 1942.Footnote ¹⁴

The decision by Congress to abolish treaty-making was intended to signal the death of Native American nationhood, but declaring it could not make it so. The Senecas, Cayugas, Onondagas, Oneidas, Mohawks, and Tuscaroras had never relied on the United States or the state of New York to assert or validate their nationhood. Rather, they lived it, and continue to live it.