In Custer Died for Your Sins (1969), Vine Deloria wrote that "Indian people laugh themselves sick" when they hear American whites charge Soviet Russia with breaking treaty agreements: "It would take Russia another century to make and break as many treaties as the United States has already violated" in its dealings with American Indians. In the century between 1778 and 1871, the United States government made some 370 treaties with Indian tribes and nations. About one-third of these were peace treaties, but it is open to question what relationship should be understood between these treaties and "peacemaking" as construed above.
Since 1871 the United States has declined to sign treaties with Indian tribes, though it has continued to sign "agreements" understood to have the same binding force as treaties. The difference lies in rejection of the notion that the Indian tribes should be recognized as independent nations. Prior to 1871 this had been a matter of dispute, subject to varying interpretation and practice. In 1828, President John Quincy Adams declared that at the establishment of the United States, "the principle was adopted of considering them as foreign and independent powers." But in 1831, in the case of Cherokee Nation v. Georgia, Chief Justice John Marshall gave the majority judgment of the Supreme Court that the Indians were "domestic dependent nations," not to be considered "a foreign state in the sense of the Constitution." However, the Supreme Court was closely divided on the issue. In their dissent, Justices Smith Thompson and Joseph Story argued that the history of past treatment of the Indians led irresistibly to the conclusion that "they have been regarded, by the executive and legislative branches of the government, not only as sovereign and independent, but as foreign nations or tribes, not within the jurisdiction nor under the government of the states within which they were located."
Moreover, while Chief Justice Marshall maintained that the Indians were not "foreign states in the sense of the Constitution" with respect to the jurisdiction of the Supreme Court, he acknowledged that for other purposes the Cherokee nation clearly did have the character of
a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself…. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community.
The following year, in the related case of Worcester v. Georgia, Marshall reaffirmed as the judgment of the Court that treaties with the Indians had the same standing as treaties with other nations:
The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.
The first treaty of peace ever made by the U.S. government was with the Delaware Indians in 1778, at Fort Pitt (Pittsburgh). This was in fact a treaty of alliance between the United States and some of the Delaware tribes, at a time when most of the Indians of Ohio and New York, including the Delaware, were fighting on the side of the British in the revolutionary war. The treaty repudiates the allegations of "enemies of the United States" who have
endeavoured by every artifice to possess the Indians with an opinion that it is our design to extirpate them, and take possession of their country; to obviate such false suggestions, the United States guarantee to said nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner as bounded by former treaties.
Similar guarantees were reiterated numerous times in succeeding years—for example, in 1790, when President George Washington assured the Iroquois Nations that the U.S. government would "protect you in all your just rights…. You possess the right to sell, and the right of refusing to sell your lands…. The United States will be true and faithful to their engagements." In reality, the United States repeatedly violated these engagements, systematically dispossessing the Indian tribes of their lands and depriving them of their traditional means of subsistence, utilizing every means at hand including force and fraud, trickery and bribery, and finally murder, arson, and massacre. Although no war was ever declared by Congress against an Indian nation, one may well name the entire period of white colonization of the territory now comprising the United States the "Four Hundred Years' War." This protracted war reduced the Indian population of some twelve million in the area of the continental United States before the arrival of the colonists to about 300,000 in 1872. By that time the Delaware, who had been assured in 1778 that it was only the "false suggestions" of "enemies of the United States" that it was "our design to extirpate them, and take possession of their country," had been driven from their native territory and so reduced and dispersed that the report of the commissioner of Indian affairs for 1872 mentioned only eighty-one Delaware, living with the Wichita in Indian Territory.
In the present context, three main points are salient about the relations between the United States and the Indian nations: first, the consistent failure of the U.S. government to adhere to commitments made in numerous treaties of peace and amity; second, the outright resistance of many officers of the U.S. Army, and many state and federal government officials, to making peace with Indians on any terms other than unconditional surrender, removal to reservations, or, if necessary, extermination; and third, the use of peace treaties as weapons of war.
Although the full history of "broken peace pipes" has yet to be written, one may read parts of it in such works as Helen Hunt Jackson's A Century of Dishonor (1881), Dee Brown's Bury My Heart at Wounded Knee (1971), Vine Deloria's Of Utmost Good Faith (1971) and Behind the Trail of Broken Treaties (1985), and M. Annette Jaimes's collection The State of Native America: Genocide, Colonization, and Resistance (1992). With respect to peacemaking, the effect of the most glaring atrocities, such as the Sand Creek massacre, was to shut all doors to peace. On 29 November 1864, Colonel John M. Chivington and Major Scott Anthony led seven hundred men to mutilate and slaughter some two hundred Indians, encamped at Sand Creek under assurances from Anthony himself that they would be under the protection of Fort Lyon. As Dee Brown concludes: "In a few hours of madness at Sand Creek, Chivington and his soldiers destroyed the lives or the power of every Cheyenne and Arapaho chief who had held out for peace with the white men. After the flight of the survivors, the Indians rejected Black Kettle and Left Hand, and turned to their war leaders to save them from extermination."
Despite the hideousness of this and other massacres, far more Indians were killed and driven off their lands by the devices of dishonest, dictated, and disregarded peace treaties. Among the clearest examples of this was the case of the Cherokee. First persuaded by treaty commitments in 1785–1791 that the United States "solemnly guarantees to the Cherokee nation all their lands" not expressly ceded in the treaties, the Cherokees refrained from making war despite many hostile encounters with whites and the illegal entry onto their lands of numerous white settlers. Pressured into ceding more territory by treaty in 1817, some of the Cherokee began to move west of the Mississippi; but many refused to sign the treaty and most of the Cherokee clung stubbornly to their traditional lands. In 1829, however, the state of Georgia adopted an act that annexed their whole territory to the state and deprived them of all legal and political rights, annulling "all laws made by the Cherokee nation, … either in council or in any other way," and providing that "no Indian … shall be deemed a competent witness in any Court of this State to which a white man may be a party." The Cherokee sought to challenge this in the Supreme Court, but were discouraged by the Indian Removal Act of 1830, the refusal of the Supreme Court to hear their case in 1831, and the refusal of President Andrew Jackson to implement the more favorable decision of the court in Worcester v. Georgia (1832).
Under these circumstances, some of the Cherokee were induced to sign the Treaty of New Echota (1835), relinquishing all the Cherokee lands east of the Mississippi (encompassing territory in four southern states exceeding in size the states of Massachusetts, Rhode Island, and Connecticut) in return for five million dollars and seven million acres west of the Mississippi. The treaty again assured the Cherokee that the new lands ceded to them "shall in no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory." Whether they recognized that these assurances would be as worthless as earlier ones, or simply preferred their ancestral lands, most of the Cherokees refused to sign the Treaty of New Echota; in 1837, General John Ellis Wool reported that the Cherokee people "uniformly declare that they never made the treaty in question." Nevertheless, at the expiration of the stipulated time the U.S. Army appeared to carry out the removal, "in obedience to the treaty of 1835." Fifteen thousand Cherokee were forcibly evicted under conditions of such inadequate food, shelter, and sanitation that four thousand died on the long trek west. Thus, in retrospect, treaty-making takes on the appearance of the most deadly weapon employed by the whites in their war to wrest the continent from the Indians; to persuade, trick, or coerce them into giving up their lands; and to reduce them to a remnant of their former numbers.
Nevertheless, with the emergence of Indian activism in the Americas and other indigenous movements around the world since the 1970s, there was a revival of interest in past treaties and contemporary treaty-making to clarify and reaf-firm the rights of Indian tribes and other indigenous groups promised in earlier treaties and agreements, resolve the destructive conflicts over these rights that persist today, and restore the dignity and lands of indigenous peoples. In 1974 the International Indian Treaty Council (IITC) was established to press for the rights of indigenous peoples across the Americas and around the globe. The IITC has worked through the United Nations and through autonomous meetings and action to secure recognition and redress, with some degree of success.
For example, in 1995, Queen Elizabeth II signed an apology to the Maori people of New Zealand and announced the return to the Maori of 39,000 acres of land the British had confiscated from them illegally in 1863, and the provision of a $42 million fund for the repurchase of privately owned land. Although the amount restored was far less than had been taken, and hundreds of tribal claims remained in litigation, this was an unprecedented and important gesture of reconciliation. In the United States some lands and rights were restored to Native Americans through the Indian Claims Commission between 1946 and 1978, the Indian Civil Rights Act of 1968, and other legislative acts. However, the claims settlements have been very limited, and since 1978, Indian claims have been pressed mainly through the federal courts and acts of Congress. Some of these have been settled, notably the Seneca Nation Settlement Act of 1990, which provided a settlement award of $60 million to the Seneca, but in 2001 many claims were still pending, including the long-fought Black Hills land claim of the Lakota Nation, and there was little ground for optimism about early resolution of the major claims and issues.
In 1996 a subcommission of the United Nations Commission on Human Rights issued a Draft Declaration of the Rights of Indigenous Peoples. While the General Assembly did not vote to approve the draft, it recognized the adoption of such a declaration as one of the main goals of the International Decade of the World's Indigenous People (1995–2004). Article 36 of the Draft Declaration states: "Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements."