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, of all people, 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.
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, and 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.
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.”
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.