Treaties matter. There exists no better example of this truism than the United States Supreme Court’s ruling last summer in McGirt v. Oklahoma (and related case Sharp v. Murphy). A surprise, groundbreaking decision, McGirt held that the treaties that the United States signed with the Muscogee (Creek) Nation in 1832 and 1833 remain binding and that considerable territory in eastern Oklahoma remains, for the purposes of jurisdiction, “Indian country.” As legal scholar Ronald Mann wrote, “The decision is a stunning reaffirmance of the nation’s obligations to Native Americans.”Footnote ¹

Associate Justice Neal Gorsuch, who wrote the majority opinion, held that until Congress formally and explicitly abolishes those agreements, the treaties remain in force. The ruling opinion was an unambiguous statement of the importance of treaties. Rather than considering them historical artifacts, treaties persist to this day as binding agreements.Footnote ² And it is worth remembering that fact nearly 150 years after Congress formally put an end to the practice of treaty-making.

In March 1871 Congress ended its nearly century-old practice of formal treaty-making with Indian tribes. A rider attached to the Indian Appropriations Act (IAA) for the fiscal year 1871 simply declared, “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 by treaty.”Footnote ³ The U.S. government would continue to recognize previously ratified treaties, the rider affirmed, but it could no longer enter into new treaties with Indigenous nations. Until 1871, as Kevin Bruyneel notes, “Treaty-making … stood as the basis upon which indigenous political agency and status in relation to the American political system was framed, recognized, and fought over.”Footnote ⁴ But in an instant that March, Congress halted “treaty relations [that] stood in the way of the imposition of the colonial rule that would facilitate … state and national development” during Reconstruction.Footnote ⁵

Treaty-making was the way of conducting business between Indian peoples and the U.S. government between 1777 and 1868, and it was a primary mechanism through which the United States acquired much of its land.Footnote ⁶ As Donald Fixico points out, “American Indians hold a unique status in having signed the most treaties of any Indigenous people in the world. After negotiating more than 400 treaties with American officials, a total of 374 were ratified by the U.S. Senate.”Footnote ⁷ As binding agreements, these treaties are, along with acts of Congress, the “Supreme Law of the Land,” solemn agreements between the United States and Indigenous peoples that the U.S. government obligated itself to uphold.

During and after the Civil War, Congress passed a number of bills, including the Homestead, Railway, and Land-Grant College (Morrill) Acts, all of which had tremendous impacts on American Indian communities and Indigenous sovereignty.Footnote ⁸ These congressional initiatives laid the foundation for subsequent efforts to gobble up Indian lands. “The celebration of consolidated nationhood left little scope for tribal sovereignty. After Appomattox, the idea of independent tribal nations came under increasing attack from land-hungry settlers, ranchers, mining and railroad companies and politicians who found tribal sovereignty an obstacle to economic development and an affront to American society,” writes historian Mark Hirsch. “Unwilling to countenance the existence of ‘savage’ tribes in a ‘civilized’ nation, Americans insisted that Indians should spurn tribalism and accept Christianity, private property ownership and, eventually, full citizenship and assimilation into Euro-American society. The full-bore assault on tribal culture and institutions fueled pressure for Congress to prohibit future treaty-making with Indian tribes.”Footnote ⁹

The call to end treaty-making had received a much-needed boost from the congressionally appointed Indian Peace Commission, a failed effort whose members suggested in 1868 that the United States cease its recognition of tribes as sovereign nations. President Ulysses S. Grant’s so-called Peace Policy advocated for the replacement of corrupt Indian agents with Christian missionaries, but men such as Commanding General of the United States Army William T. Sherman undermined those initiatives. As Clifford Trafzer and other historians have argued, the Peace Policy sought to address systemic mismanagement and corruption in the Indian Office but served, in the end, as another way to promote Indian land dispossession. “[T]ake away their freedoms, and send them to reservations, where missionaries would teach them how to farm, read and write, wear Euro-American clothing, and embrace Christianity. If Indians refused to move to reservations, they would be forced off their homelands by soldiers.”Footnote ¹⁰ Grant’s Peace Policy and especially his Board of Indian Commissioners, who sought “to accelerate dispossession, to coerce assimilation, and promote Indian confinement,” was ultimately responsible for the congressional move in 1871.Footnote ¹¹

The impact of the end of treaty-making was nearly instantaneous. As historian Francis Paul Prucha points out, after the bill’s passage “executive orders … became the dominant means of establishing and modifying … Indian reservations (once done by treaty).”Footnote ¹² Such presidential proclamations did not require nor seek Indigenous consent and represented a turning point in U.S.-Indigenous relations. The president, often with prodding from the U.S. military, could take whatever and from wherever he wanted, often responding to the desires of special interests.

The 1871 IAA’s effect played out most obviously and immediately in the Southwest. All Apache trust lands in Arizona, including the White Mountain Indian Reservation (WMIR), were created by executive order, not treaties or separate congressional action. After 1871, through a series of presidential orders, portions of the WMIR and subsequent Apache reservations were excised for and by farming, mining, and other business interests, territory officials, and federal representatives. In the case of Apache tribes, the 1871 IAA dictated terms for at least the next thirty-eight years, especially when it came to multiple reservation reductions and severances, including many by executive order. In addition to WMIR, at least fifty-five executive order reservations were established after the 1871 IAA.Footnote ¹³

The year 1871 was a “fundamental turning point” in U.S.-Indigenous policy, as Vine Deloria Jr., Raymond DeMallie, Bruyneel, and Patrick Wolfe, among others have argued, even if the treaty abolition rider’s place as “a conscious and acknowledged departure” from previous government-Indigenous interactions remains uncertain.Footnote ¹⁴ “The appropriations rider … might … be regarded as only a minor and temporary conflict between the Senate and House of Representatives, because treaty language continued to be used when dealing with Indians,” Deloria and DeMallie concede. “But the rider can also be appropriately viewed as the culminating step in what had been a long and often contentious argument over the feasibility of making treaties with Indian tribes,” they point out.Footnote ¹⁵ For Bruyneel, “1871 … represent[s] the moment when the renewed American nation and state expressly made its colonial impression by imposing boundaries to restrict and subsume the spatial, historical, and political life of indigenous nations and tribes.”Footnote ¹⁶

* * *

This roundtable brings together four scholars to recognize the 150th anniversary of this legislative turning point in the history of U.S.-Indian relations and to reassess its lasting impact and legacies in our contemporary moment. The contributors were asked, based on specific areas of expertise, to answer any or all of the following questions: How did the 1871 IAA impact Indigenous peoples and how did they respond to this legislation? How did the law speed up and facilitate movement and incursions into Indian spaces—in Indian Territory and the Southwest and elsewhere? Why and in what ways does the 1871 IAA matter in the present?

This roundtable attempts to make sense of some of the questions posed about the end of treaty-making in 1871. It begins with the assertion by Michael Oberg that the abolition of treaty-making had little, if any, impact on the Haudenosaunee Confederacy (Six Nations of the Iroquois) in New York State. Looking at the intentions of the first American Indian Commissioner of Indian Affairs, Ely Parker, as well as treaties and the response to treaties by the Haudenosaunee, Oberg elucidates both the complicated character we find in Parker, as well as the long-standing efforts to take Native lands that began long before and continued long after the 1871 legislation. After a brief response from Kevin Bruyneel, Alaina Roberts focuses on the history of the Indian Territory during and after the Civil War to show how colonial settlers coveted the Five Tribes’ “all-Native space”—and just how significant treaties from 1866, as well as the 1871 legislation, were. Both Julie Reed and Oberg offer short replies. Reed, like Roberts, also looks to Indian Territory to understand critical Indigenous—particularly the Cherokee Nation’s—responses to the 1871 appropriations act. Oberg and Bruyneel reply to Reed’s contribution. Finally, Bruyneel presents a rollicking and important essay, including prescriptions, that connects it all together—from 1871 through W.E.B. Du Bois, and eventually to Rev. Dr. William Barber and his Moral Mondays. Roberts offers a final reply to close the roundtable.

Geographic place played an important role in determining the effects of the 1871 IAA on Indigenous communities. Despite similarities in the settler colonial process, as the roundtable participants show, Indigenous peoples throughout the United States felt the impacts of the act differently. Some Indigenous people felt no effects at all. But regardless of regional differences, the statistics regarding Indigenous lands lost after 1871 are somber. Congress passed legislation, including such notorious acts as the 1887 General Allotment (Dawes) Act and 1898 Curtis Act, which led to the loss of at least eighty-six million acres, or nearly two-thirds of all Indigenous lands held by tribal nations before the passage of the 1871 IAA. And this may be an undercount. The number of actual acres lost is considerably higher if scholars include legislation such as the 1872 General Mining Act, various acts to establish national parks and preserves such as Yellowstone and Yosemite, executive orders, and other machinations.Footnote ¹⁷

Historians continue to debate whether the 1871 IAA made it easier to take Indian lands or was just another marker on the long history of Indigenous dispossession and settler attacks on sovereignty. It was likely both. As historian C. Joseph Genetin-Pilawa explains:

Prucha concurs, observing, “[A]t the end of the nineteenth century and early in the twentieth, special commissions, new laws, and Supreme Court decisions made clear that treaty provisions, once considered sacred, need no longer be adhered to. … The treaty system had deteriorated to the point of collapse.” In other words, by 1871 the treaty system was teetering on the brink of collapse.Footnote ¹⁹

One hundred and fifty years later, in 2021, several questions remain, some of which have arisen anew since July 2020. The McGirt v. Oklahoma case was much on the minds of several respondents in this roundtable, as were the protests in response to the murder of George Floyd at the hands of Minneapolis police.Footnote ²⁰ What ripple effects will McGirt produce for Indian reservations in any number of places among the more than 550 federally recognized tribes? Will tribes in Arizona or Wyoming, for example, bring forth new claims to recover traditional territories?Footnote ²¹ Will Black Lives Matter activists and their supporters fighting for freedom, liberation, and justice forge new and lasting alliances with Indigenous peoples in their ongoing fight for health, land, water, sky, and sovereignty? Just as activists toppled symbolic Columbus and Confederate statues in a number of places throughout the United States, we can only hope that congressional leaders will in their wisdom repeal the 1871 IAA, while keeping an eye out for additional outdated settler colonial maneuvers to abolish. Perhaps the participants in this roundtable will give us some suggestions.

Each of the main contributions and responses that follow in this roundtable offer cogent arguments that the 1871 IAA was at the very least another assault on the sovereignty of Indigenous nations and another marker along the long history to weaken the grip of American Indians on their homelands. As the recent Supreme Court case McGirt v. Oklahoma shows, it is not so easy to erase, in the words of Bruyneel, “Indigenous political activism, sovereignty, and the commitment to defending life and land in resistance to settler colonial hegemony.”