Indian treaties

The United States and Canada have long but very different histories of relations with the original citizens of the Columbia River Basin. Both countries pursued treaties with Indians to establish rights to land and resources; the effort was particularly slow to develop in Canada.

The United States recognized the sovereignty of Indian peoples in 1832 when the United States Supreme Court ruled in Worster v. Georgia that the “several Indian nations” had legal status as “political communities within which their authority is exclusive.” On their reservations, created by treaties with the United States, Indians had exclusive authority, and this authority and all rights to land within the reservations were “not only acknowledged but guaranteed by the United States,” according to the court.

Importantly, the United States did not grant rights to Indians through treaties, Indians reserved rights for themselves. In this, the fledgling United States recognized the sovereignty of the Indian people who were here first and with whom the United States shared the continent. This spirit of joint occupation of the territory imbued treaties the United States already had signed with Indians, beginning in 1787, but by the mid-1800s the implied balance of power among the separate nations began to shift toward dominance by the United States as the country steadily fulfilled its westward expansionist dreams.

Meanwhile in Canada, the federal and provincial governments aggressively sought to extinguish or deny Indian claims to land and, in this way, encourage immigration to British Columbia by Europeans. The Colonial Land Ordinance of 1870, for example, gave away land in British Columbia, in 320-acre increments, to any British man over the age of 18 and pre-empted any other claim to the land. Specifically, the law stated that: “such right of pre-emption shall not be held to extend to any of the Aboriginies of this Continent.” In 1927, the federal government made it illegal for Indians to pursue their land claims in court or even raise money for that purpose, punishable by imprisonment.

In both countries, then, westward expansion from the settled areas of the East to the unsettled West was a national policy goal. Indians simply were in the way.

Settlers began pouring into the American Columbia River Basin in the 1840s, and by the 1850s the inevitable conflicts with indian tribes led to hostilities. Despite the specific direction of Worster v. Georgia, the United States government sought to push Indians off their lands and onto reservations that were created by treaty in locations away from transportation corridors and the most productive farmland — that is to say, out of the way of “progress.” The point was to limit or extinguish Indian land claims so as not to interfere with non-Indian settlement.

The man assigned to this duty in the Pacific Northwest was Isaac Ingalls Stevens, an arrogant, politically ambitious West Point graduate who, it can be said, proved himself to be a shrewd and ruthless negotiator among the Indians. The look of Indian country today in the Pacific Northwest is very much the result of his treatymaking on behalf of the United States in 1855.

Born in Massachusetts, Stevens graduated from West Point at the head of his class. He distinguished himself through his career in the Topographic Engineers Corps during the Mexican War of 1846-47, rising to the rank of major general. Following the war he received scientific training and valuable experience in surveying with the United States Coast Survey.

Stevens supported Franklin Pierce in his run for president, as did many other military officers, and Pierce remembered. Because of Stevens’ background as an engineer, surveyor and military officer, in 1853 Pierce named him, concurrently, governor and superintendent of Indian affairs of Washington Territory, and director of the Pacific Railroad Survey, northern division. The survey work made him familiar with “the great plains of the Columbia,” as he called the interior Columbia Basin, and he promoted both railroad construction and permanent settlements in the region, which he considered well-suited for agriculture.

Stevens as governor was well-liked in Olympia, the capital then of the territory and later the state of Washington, but he also had a knack for losing support quickly. Early in 1857, after a series of political battles in Olympia, the territorial legislature censured him. It is ironic, or perhaps just a measure of his personality and persuasiveness, that later the same year he won election as the territory’s representative to Congress. He served until 1861.

His best-known, and also most infamous legacy in the Columbia River Basin is his leadership of the treaty-making with Indian tribes in 1855. That year, and in 1854, there were increasingly frequent conflicts between homesteaders, miners and other non-Indian residents of the interior Columbia Basin and the Indian tribes, who saw their traditional territory being overrun by immigrants from the East. It was a clash of cultures that could only be settled by negotiation or war.

First, it would be negotiation. Through a series of treaties, the United States hoped to assemble the seminomadic Indians into confederations — alliances that in many cases did not mirror historic intertribal relations — and remove them to reservations. This would make way for the immigrants, primarily farmers who had been plodding west on the Oregon Trail in steady annual migrations for more than 10 years.

Stevens presided at treaty councils with Indians west of the Cascade Mountains between December 25, 1854, and February 26, 1855, and with tribes east of the mountains between May 21 and October 17, 1855. The Indians generally agreed to move onto reservations, ceding more than 100,000 square miles of their historic territory. In exchange they received promises of land, buildings, cash and education. Also, the tribes reserved certain rights for themselves, particularly regarding fishing. For Indians of the central Columbia Basin, the bands confederated today as the Nez Perce, Umatilla, Warm Springs and Yakama tribes, that particular right is established in Article III of the Treaty of Walla Walla, which was signed June 9, 1855, and remains in effect to this day. That section reads:

“The exclusive right of taking fish in all the streams where running through or bordering said reservations, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”

As recorded in the official proceedings of the Walla Walla Treaty negotiations, Stevens explained this provision by telling the Indians, “You will be allowed to go to the usual fishing places and fish in common with the whites.” The written record further quotes Stevens as saying, “The Indian will be allowed to take fish. . . .at the usual fishing places, and this promise will be kept by the Americans as long as the sun shines, as long as the mountains stand, and as long as the rivers run.”

However, that is not what two witnesses recorded in their personal diaries of the Treaty council. These two citizens, settlers from Walla Walla, observed the negotiations but were not part of the official military party. According to them, Stevens instructed his interpreter to say, “Tell the chiefs if they don’t sign this treaty they will walk in blood knee deep.”

The official version and Stevens’ actual threats are recorded in A True Copy of the Record of the Official Proceedings at the Council in the Walla Walla Valley, 1855, edited by Darrell Scott, Ye Galleon Press, Fairfield, Washington, in 1985. Scott writes that the event suggests Stevens used threats to persuade any reluctant Indians to sign, particularly Kamiakin, chief of the Yakamas. In fact, Kamiakin was the first to sign the treaty, according to the official record. Stevens’s threats also are noted in Andrew Pambrun’s Sixty Years on the Frontier in the Pacific Northwest.

The official proceedings portray a sense of unity and common purpose among the treaty negotiators, both Indian and non-Indian. While it is true that the Indians signed, not all of them signed. Chief Joseph’s band of Nez Perce Indians did not attend the treaty gathering, refusing to take part in what they saw as a give-away of their Wallowa Valley homeland. Other Nez Perces did sign, but some were anguished about it.

James Doty, who served Governor Stevens as secretary during the negotiations, kept a record of the Walla Walla Treaty Council, noting in his entries for June 8 and 9 the dramatic and sudden appearance of Looking Glass, a chief of the Nez Perce, who were being represented at the treaty council by a Chief named Lawyer.

Doty wrote:

“Looking Glass rode up to the Council Ground seemingly much excited and speaking in a low voice said, ‘My people, what have you done? While I was gone you have sold my country. I have come home and there is not left me a place on which to pitch my lodge. Go home to your lodges. I will talk to you.’”

Despite the opposition of Lookingglass, Lawyer signed the treaty the next day on behalf of the Nez Perce. There was general good will in camp, a sense of optimism that Doty captured in his entry for June 11: “Then ended in the most satisfactory manner this Great Council, prolonged through so many days.”

But the optimism did not last. Not all Indian bands were present at the treaty council, and many of those who did not attend rejected the document and orders signed on their behalf by others. Historian Alvin M. Josephy, Jr., writes that after the Indians returned home even those who signed the treaty documents began to argue among themselves.

In fact, this was the undoing of good will, and the Indians blamed Stevens personally. They felt he arbitrarily assigned bands to live together on reservations within boundaries that he and his aides determined. Soon, fighting broke out, skirmishes in which both whites and Indians were killed. Josephy writes that Stevens was greatly angered by both the fighting and what he saw as the perfidy of the Indians.

This dissatisfaction among the Indians, the skirmishes and general unrest between Indians and non-Indians, and the fact that Stevens did not fulfill his promise of payments to the tribes, caused his superiors in Washington, D.C., to question the value of the treaties and Stevens’ leadership. But Stevens lobbied hard for ratification of the treaties and finally, in 1859, the Senate approved them and they were signed by President James Buchanan.

Stevens was a strong leader, and he had a well-honed ability to persuade, cajole, argue and, when he felt it was necessary, bully his opponents to get his way. He was a brilliant surveyor, and his work on the northern railroad survey helped open the Northwest to settlement. He was, at times, both popular and wildly unpopular as Governor. He was ambitious and stubborn. However, he cannot be considered successful as the territorial Superintendent of Indian Affairs. Stevens’ policies and hurry-up attitude toward amalgamating the various tribes in confederations — some of them more expedient than natural — led to the deaths and misery of many Indians, and to wars in the interior Columbia River Basin in the 1850s through 1870s that should not have occurred. Stevens left the Northwest after the outbreak of the Civil War. He served as a Union officer and died at the Battle of Chantilly on September 1, 1862, at the age of 44.

Immigration to the Pacific Northwest continued; several more treaties were signed — with Indians who lived along the Snake River in southern Idaho, for example, but the treaty-making era soon ended. The Appropriation Act of March 3, 1871, effectively terminated treatymaking with Indian tribes. (“. . .no treaties shall hereafter negotiated with any Indian tribe within the United States as an Independent Nation or People.”) The statute, 25 USCA 71, provided that no tribe should be recognized as an independent nation for treatymaking purposes (existing treaties were not affected). Reservations created after 1871 were established either by specific statute or by executive order (Congress ended that practice in 1919). The Colville Reservation in eastern Washington, north and west of the Columbia River, was created by executive order on April 8, 1872. On the east side of the Columbia, the Spokane Reservation was established by executive order on Jan. 10, 1881. The Coeur d’Alene Reservation, southeast of the lake, was established by executive orders on June 14, 1867 and Nov. 8, 1873.

The enduring legacy of the treaty-making, other than the reservations, of course, is the legal stature afforded indian fishing in the Columbia River Basin. The fishing rights guaranteed by the treaties of 1855 have been tested in court many times but never extinguished.

In British Columbia, treatymaking and the establishment of Indian reservations was much slower to develop. Certain tribes in eastern Canada were granted reservations by Great Britain under terms of a 1763 royal proclamation, but when the Dominion of Canada was formed in 1867 any land not ceded previously by tribes was claimed by the new government as public land.

British Columbia was a colony in 1871 when it joined the Dominion, and as such owned all of the land within its borders that previously had been ceded to the Hudson's Bay Company. The new provincial Legislature announced it would not recognize Indian title to land and would not negotiate treaties. In 1876, the federal Indian Act prohibited Indians throughout Canada from voting or receiving government pensions, and in 1884 British Columbia outlawed potlatches, an important aspect of coastal Indian culture and inter-tribal relations. Columbia River Basin First Nations — the Ktunaxa, for example — did not practice a potlatch ceremony. The anti-potlatch law was repealed in 1951. Indians were not granted full citizenship in Canada until 1960, although they were allowed to vote in British Columbia beginning in 1949.

Through these laws the federal government sought to assimilate Indians into the non-Indian society; the conscious effort of legislation was simply to extinguish the “Indianness” of the First Nations. Writing in the Spring 1991 edition of BC Studies, Chief Joe Mathias of the Squamish people and Vancouver, B.C., attorney Gary Yabsley comment that “. . .the federal and provincial legislation over the past one hundred years has impaired and restricted First Nations in every conceivable manner. It has worked not for the betterment of Indian societies but for the elimination of these societies as distinct and vital social orders within Canada. The fact that First Nations continue to exist — indeed, that they forcefully continue to assert their Indianness — is testament to the tenacity and strength of these nations.”

For decades, First Nations in British Columbia challenged the federal and provincial laws and policies that had extinguished their land ownership. The first case to reach courts in British Columbia was brought by the Nisga’a people, a coastal tribe, in the 1960s and was entitled Calder vs. Attorney General of British Columbia. In 1973, the Supreme Court of Canada ruled that Aboriginal title to land existed in British Columbia, but the province continued to reject the concept until 1990 when it reversed itself and established a task force to investigate treaties. This led to the creation of an impartial Treaty Commission in the province in 1991, an agreement between First Nations and the province in 1992, the BC Treaty Commission Act in 1993 and, ultimately, acceptance by the federal government and the beginning of treaty negotiations over title to land.

This is a big task, as there are more than 120 First Nation bands in the province; about 10 percent of these are in the Columbia River Basin and the upper Fraser River Basin. In the Columbia basin, the Ktunaxa Kinbasket Treaty Council negotiates with the governments of Canada and British Columbia. According to the Council, the primary purpose of treaty negotiations is to establish Ktunaxa governance structures to strengthen the ability of the Ktunaxa people to participate in decision making concerning the use of land and resources and delivery of programs and services within the territory of the Ktunaxa Nation.

Treatymaking in British Columbia is a slow process, but progress is being made. By the end of 2003, three agreements-in-principle had been completed and two others were pending, all regarding the homelands of coastal First Nations. An agreement-in-principle is the first step toward a treaty. In addition, the province is negotiating treaty-related documents addressing First Nation rights and responsibilities regarding oil, natural gas, parkland management and forestry.

In a reversal of its historic policy of extinguishing First Nations land claims and cultural heritage, the provincial government today is actively working to recognize the unique cultures and rights of the first inhabitants.

Related links: Legal decisions on indian fishing rights from 1905 to 1988.

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