Doctrine
agreements
After 1871 Congress stopped making treaties with tribes and instead ratified negotiated agreements as statutes, which courts still treat as binding law.
- Definition
- Post-1871 instruments ratified by both houses of Congress in place of treaties.
What happened
The Act of March 3, 1871 changed how the United States dealt with tribes. It ended new treaty-making with tribes while protecting existing treaties, as the treaty-making record explains.
The Supreme Court, in Antoine v. Washington (1975), explained the background. It said the 1871 Act "resulted from the opposition of the House of Representatives to its practical exclusion from any policy role in Indian affairs." For nearly a century the Executive Branch had made treaties with advice and consent of the Senate, while the House only paid for them.
After 1871 the government kept making deals, now called agreements, and Congress ratified them by statute. Antoine involved an 1891 agreement with the Colville Tribe that Congress ratified. The Court held that such ratifying statutes are "Laws of the United States" made in pursuance of the Constitution, and that the 1871 Act did not affect "Congress' power to legislate on the problems of Indians, including legislation ratifying contracts" with tribes.
The Court also applied a canon of construction: the wording of treaties and statutes ratifying agreements with Indians is not to be construed to their prejudice.
Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error
What the sources say, and how this was checked
Well supported by the sources below.
shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty
25 U.S.C. 71, Future treaties with Indian tribes, Cornell LIIThe Act of 1871 resulted from the opposition of the House of Representatives to its practical exclusion from any policy role in Indian affairs.
Antoine v. Washington, 420 U.S. 194 (1975), Cornell LIIare 'Laws of the United States . . . made in Pursuance' of the Constitution
Antoine v. Washington, 420 U.S. 194 (1975), Cornell LIIthe wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice
Antoine v. Washington, 420 U.S. 194 (1975), Cornell LII
Research notes. The Act of 1871 is quoted from today's 25 U.S.C. 71. Antoine is cited through its syllabus and its discussion of the 1871 Act; the details of the 1891 Colville agreement were not read beyond the Court's summary. Critiques of the post-1871 agreement system were not opened. How many agreements were made after 1871 was not counted.
Who is doing the work
Native legal and land defense, nationally
- Native American Rights Fund (NARF) Native-led Litigation and legal advocacy for tribal sovereignty, treaty rights, land and resources Give on their site Website
- NDN Collective (LANDBACK Campaign) Native-led LANDBACK campaign (launched 2020; Mount Rushmore closure and return of Black Hills public lands), Indigenous… Give on their site Website
- Indian Land Tenure Foundation (ILTF) Native-led Land recovery and control by tribes and individual Indian landowners Website
- Decolonizing Wealth Project (Indigenous Earth Fund; California Tribal Land Return) Native-led Reparative philanthropy Give on their site Website
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Connections
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Sources
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- Kind
- Doctrine
- Confidence
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