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The Context of Indian Nation Treaties

The National Museum of the American Indian (NMAI) has developed an important and visually striking exhibit titled “Nation to Nation: Treaties Between the United States and American Indian Nations.” It opened on September 21, 2014 and will run until fall 2018. A summary on NMAI’s website states, in part: “Treaties lie at the heart of the relationship between Indian Nations and the United States,” and that the treaty exhibit tells “the story of that relationship, including the history and legacy of the U.S.—American Indian diplomacy from the colonial period to the present.”

There is, however, an important question evidently not being addressed by the NMAI exhibit: Why are treaties with Indian nations not classified in the same manner as U.S. treaties with countries such as the United Kingdom, France and Spain? An explanation of the framework that the United States has used, and continues to use, for interpreting treaties with our original “Indian” nations was published in 1848. It was published “Under Authority of Congress” in Volume VII of “The Public Statutes at Large of the United States of America,” which was edited by attorney Richard Peters.

Volume VII is titled “Treaties Between the United States and the Indian Tribes,” thereby characterizing Indian treaties as not having been made with Indian nations. To their credit, the NMAI curators of the treaty exhibit are contradicting this attitude with the terms “Nation-to-Nation” and “American Indian Nations.”

In the Table of Contents of Volume VII of the Statutes at Large, beneath “List of the Treaties Between the United States and the Indian Tribes,” Peters writes: “General principles recognised [sic] by the Supreme Court of the United States in relation to the Indian tribes” and notes on page one that he felt obligated to begin the book with information explaining how “treaties between the United States and the Indian tribes” are interpreted from the viewpoint of the United States. Part of that explanation includes what he calls “the general principles which have been recognised [sic] by the Supreme Court of the United States and the Indian tribes,” and “the Indian title to the lands occupied by them.”

The main body of Volume VII of the Statues at Large begins with “the case of Johnson and Graham’s Lessee v. William M’Intosh, 8 Wheaton’s Reports,” delivered by Chief Justice Marshall. He then reprints verbatim almost the entire 1823 Johnson v. M’Intosh ruling. That ruling is, of course, premised on what Chief Justice Marshall called “the right of discovery, which he said was “confined to countries then unknown to all Christian people.”

Later, citing United States v. Clarke, 9 Peters, 168, Peters wrote that “the ultimate fee was in the crown, and its grantees,” “subject to” the Indian “right of possession.” The term “ultimate fee” according to Black’s Law Dictionary, means “complete and absolute title.” A “fee” is a “freehold estate in lands, held of a superior lord.” It continues: “The true meaning of the word ‘fee’ is the same as that of ‘feud’ or ‘fief.’” These terms take us back to the realm of feudalism and the concept of feudal lords and their subjects, and the idea of the king’s relationship with “vacant” lands, meaning the lands of non-Christian nations.

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Peters, still citing U.S. v. Clarke, refers to a “settled rule of the law of England, that by his prerogative, the king was the universal occupant of all vacant lands in his dominions, and had the right to grant them [vacant lands] at his pleasure, or by his authorized officers.” This explanation matches Chief Justice John Marshall’s statement in the Johnson v. M’Intosh ruling: “According to the theory of the British Constitution, all vacant lands are vested in the Crown, as representing the nation, and the exclusive power to grant them is admitted to reside in the Crown as a branch of the royal prerogative. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain.”

Marshall further said for the court: “In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the Crown to vacant lands was acknowledged. So far as respected the authority of the Crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the King, as was his right to grant that title. The lands, then, to which this proclamation referred were lands which the King had a right to grant, or to reserve for the Indians.”

The Supreme Court’s statement that the English crown made “no distinction” at all “between vacant lands and lands occupied by the Indians,” was further clarified by Benjamin Munn Ziegler in The International Law of John Marshall. As Ziegler put it: “so far as respected the authority of the crown, no distinction was taken between vacant lands and lands unoccupied by Indians” (p. 46). He then noted in passing, “The term ‘unoccupied lands’ refers of course to the lands in America which were ‘occupied by Indians’ when discovered, but ‘unoccupied’ by Christians.”

That the traditional territories of our original nations were “unoccupied by Christians” is the answer to the question as to why the United States government does not classify the treaties with our nations in the same manner as the treaties that the United States has made with the United Kingdom, France, Spain, and other countries. Treaties that the United States made with Indian nations are treaties made with non-Christian nations. Historian Francis Jennings summed up this attitude quite succinctly in The Invasion of America when he said: “The condition of savagery therefore involved more than aesthetic sensibilities, and the chief justice [Marshall] of a country espousing separation of church and state could show no official concern about Indian’ lack of Christianity as criterion of their legal status.” We ought to add “and political status.”

The United States has used our ancestors’ lack of Christianity as its criterion for judging the political status of our nations, and treaties, to be subordinated to the overriding “sovereignty” and “dominion” of the United States. And while the NMAI curators deserve great praise for framing the exhibit in terms of our “Nations,” a great next step would be to focus public attention on the Bible-premised Christian religious bigotry that underlies U.S. federal Indian law and policy by means of Supreme Court rulings such as Johnson v. M’Intosh (1823), and Tee-Hit-Indians v. United States (1955).

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying federal Indian law and international law since the early 1980s.