Since April 2016, members of the Great Sioux Nation have been protesting, through nonviolent direct action, the construction of the Dakota Access Pipeline (DAPL). The 1,900-kilometer pipeline runs from the Bakken oil-shale region in western North Dakota to a tank complex in Illinois.

Its route crosses the Missouri River directly adjacent to and upstream of the Standing Rock Reservation, one of several belonging to the Dakota and Lakota Sioux. A pipeline break would directly threaten the principal water source of not only Standing Rock, but more than 15 million other people.

Oceti Sakowin Camp, or All Nations Camp, in Standing Rock where many protesters have lived since April 2016.

The Sioux do not stand alone in their opposition to the DAPL. The project has also drawn objections from conservationists, white farmers, and the Meskwaki (Fox) Nation of Iowa. Theirs has nonetheless become the most dramatic demonstration against the project, drawing international attention and support.

Thousands of “water protectors,” representing 300 Native American nations and their allies, have gathered near the Cannonball River, and many have attempted to block construction of the pipeline. Their actions led to clashes between protesters and security and police officers armed with water cannons, tear gas, and armored vehicles.

To the historically minded, the anti-DAPL protests and their armed suppression recall the Civil Rights demonstrations of the 1960s, and the American Indian Movement’s occupation of Wounded Knee, S.D. in 1973.

Protesters and police faced off in Standing Rock in October 2016.

The NODAPL protesters seek to protect land and water, and also to remind other Americans of their treaty obligations to Native Americans. To do so, they draw on much older legal and cultural precedents. The demonstrators named one of their encampments the “1851 Camp,” and in justifying their decision to block pipeline construction declared that the right-of-way belonged to the Great Sioux Nation under the 1851 Treaty of Fort Laramie.

Other indigenous-rights activists observe that a subsequent agreement, the 1868 Treaty of Fort Laramie, guaranteed the Sioux “absolute and undisturbed use and occupation” of their reservations unmolested, which necessarily includes the right to an “undisturbed,” uncontaminated water supply.

Indian treaties might seem antique documents to modern mainstream Americans, who probably think of them as agreements that their white ancestors made only to break. Legally and politically, however, treaties remain valid compacts.

  

The signing of a treaty in 1851 between the U.S. and the Sioux Indian bands (top). Signing of a peace treaty in 1642 in New Amsterdam (present-day Manhattan) between the Dutch and Lenape Indians (bottom left). The United States and a coalition of Native American tribes, known as the Western Confederacy, signing the Treaty of Greenville in 1795 after the latter’s defeat in battle a year earlier (bottom right).

The U.S. Constitution specifically grants the federal government the power to negotiate treaties with Indian nations, and regards those treaties as part of “the supreme law of the land.” The U.S. Supreme Court ruled in 1905 (United States vs. Winans) that Indian treaties remain valid, and constitute “grants of rights from” Indians to the United States, not the other way around.

And to Native Americans, treaties are very much living documents. Congressman Tom Cole (R-OK and a member of the Chickasaw tribe) reminds his colleagues and constituents that treaties recognize tribal rights that existed well before the Constitution and the Bill of Rights. These are rights that grew out of Native Americans’ pre-Revolutionary status as sovereign nations, which the U.S. government repeatedly agreed to respect—nearly 400 times between 1778 and 1871, in fact.

The goal of the NODAPL movement is not merely to stop construction of a potentially dangerous pipeline, but to spotlight the obligations of the United States to the sovereign Great Sioux Nation: to respect their lands and not foul their water.

The encampments and protests at Standing Rock serve still another purpose: to demonstrate the organic continuity of Sioux nationhood. They are ceremonies of sovereignty.

A November 2016 march in San Francisco in solidarity with Standing Rock protesters.

Sovereignty is Born

Sovereignty can seem an opaque concept, but once we look closely at its origin we can see that Indian treaties either acknowledged, refined, or granted terms that collectively ascribed sovereignty to Indian nations.

In international law, sovereignty first emerged as the defining feature of nation-states under the “Westphalian system” created by the 1648 Treaty of Westphalia, Germany. Before 1648, European states theoretically had to share authority with supra-national institutions like the Catholic Church. After Westphalia, sovereign nations became much more independent of one another, particularly in their internal affairs (such as law enforcement).

The ratification in 1648 of one of the many treaties to end the Thirty Years’ War and the Eight Years’ War in Europe.

In early-modern Europeans’ eyes, a sovereign nation need brook no interference with its internal governance. A nation-state might claim to receive its sovereignty from God, but as a matter of law this came from other sovereigns’ recognition of its independence—from their admission of that nation-state to their own exclusive club.

The nationalist revolutions of the eighteenth and nineteenth centuries (including the American one) and the World Wars of the twentieth complicated the picture. Sovereignty increasingly became associated in political leaders’ minds with the right of particular peoples to self-government. The 1933 Montevideo conference and the 1945 Charter of the United Nations drew together old and new understandings of sovereignty to propose a broader definition.

In the view of twentieth-century diplomats and political leaders, a sovereign nation-state had defined territorial boundaries, a defined national population, a set of national resources, and diplomatic recognition by other sovereign nations.

Treaties with the United States affirmed Native Americans’ possession of these sovereign attributes. Most American Indian treaties defined Indians’ territorial boundaries because most involved the sale or transfer or land. From 1790 to 1870 Native peoples, either voluntarily or through coercion, ceded through treaties between 500 million and 1 billion acres of land.

  

On the left, a map of the Great Sioux Reservation (red) and the land lost by the Sioux since 1868 (yellows). On the right, a map of the Dakota Access Pipeline route (solid line) and the original pipeline route (dashed line) that was changed due to concerns over drinking water in Bismarck.

One of the considerations that Indian peoples received for each of their numerous cessions was a written record of their domains’ new boundaries. Some treaties, like the United States’ early accords with the Creeks and Chickasaws, directed chiefs to accompany the surveyors marking the boundary lines, which legitimized the land sale but also defined the boundary as a binational creation.

Native peoples considered these boundaries jurisdictional borders, over which neither white sojourners nor American state laws could pass without their consent. The U.S. Supreme Court affirmed this position as early as 1832, when in Worcester vs. Georgia it grounded the Cherokees’ immunity to Georgia state law in their treaties with the United States and their precisely defined borders.

Treaties, however, obliged Indians to rely on the U.S. government to police their borders (much as modern Liechtenstein relies on Switzerland), and if an American president refused to enforce the law they were out of options. Lots of luck with the Georgians, President Andrew Jackson effectively told the Cherokees.

A mural to the Trail of Tears in Oklahoma. An estimated 3,500 Native Americans died along the 1,200 mile journey.

Indian treaty-makers did not always concern themselves with the question of who exactly comprised the people residing within Native American nations. Periodically, though, treaty negotiators did discuss national populations, and treaties implicitly or explicitly addressed membership in the sovereign community.

In several land-cession treaties in the late 1820s, the Potawatomis and Ho-Chunks (Winnebagos) of southern Michigan and Wisconsin awarded dozens of land grants to multiracial families joined with them by blood or marriage. The grants helped support people for whom the signatory chiefs felt responsibility, and as importantly identified the specific relationship that bound the grantees to the nation: “Indians by birth,” “married to an Indian woman,” “of Indian descent,” and so forth.

These stipulations asserted an indigenous right to determine who belonged to the nation and had a claim to its resources, and why. Indian leaders did not always get the chance to assert this right, however.

After the “Five Civilized Tribes” (Cherokees, Chickasaws, Choctaws, Creeks, and Seminoles) of Oklahoma sided with the Confederacy in the Civil War, the victorious Union obliged them in their peace treaties to emancipate their African-American slaves and grant the freedpeople citizenship in their nations. The Five Tribes met this demand with varying degrees of resistance.

Most importantly, in creating and enforcing these requirements, the United States’ commissioners were arguably affirming the sovereignty of the Oklahoma Indians: the freedpeople would become Native national citizens and were therefore joining autonomous political communities.

Treaties and Resources

Treaties usually focused not on who lived within an Indian nation, but who had custody of its national resources. Land was perhaps the most important resource, but rights to game animals, fish, and wild plants also remained central to all treaties.

Members of the Native American Youth Council demonstrating against the Bureau of Indian Affairs in 1970.

For example, the 1795 Treaty of Greenville, the 1837 Treaty of Saint Peters, and the 1855 Treaty of Camp Stevens granted the Great Lakes Indians and the Cayuse and Umatilla nations the right to hunt, fish, and gather on lands they had ceded to the United States. State governments would later try to curtail some of these treaty rights through their property or fish and game laws, inspiring “fish-in” protests in the Pacific Northwest during the 1960s. Federal courts eventually disallowed these violations of treaty rights.

A more ubiquitous, if potentially troublesome resource that Indians secured by treaty was federal funding for education: schools to teach their children English literacy and numeracy, and aid and training for men and women who wished to become commercial farmers, artisans, or weavers. Education funds and teachers, which the United States provided under its various “civilization” programs, carried with them a heavy freight of cultural imperialism; increasingly, they came not merely as compensations for land sales, but as coercive mandates.

The 1867 Treaty of Medicine Lodge and the 1868 Treaty of Fort Laramie, to take two prominent instances, bound the Cheyennes, Arapahos, Lakotas, and other signatories to “compel their children … to attend school.” The 100,000 American Indian children whom agents or parents sent to distant boarding schools often found them hostile environments, built around a harsh and alienating discipline, and rife with illness and unhappiness.

  

General William T. Sherman meeting with Indian Chiefs at Fort Laramie, Wyoming in 1868 (left). Apache children at the Carlisle boarding school in Pennsylvania in the 1880s (right). 

Not all Indians, however, had the same relationship to federal education: treaties signed by the Choctaws and Shawnees (among others) gave Indian leaders control over their school funds, which gave them say over where and how their youth were educated. They could view treaty-mandated school funding as a national asset rather than an externally imposed burden.

Many Indians also realized that federal schooling and “civilization” funds could bolster their independence. English literacy and numeracy would make it harder for land negotiators and businessmen to cheat their children, and raising livestock and food crops allowed nations like the Odawas to fight against land loss and removal, on the grounds that Indians who farmed (or, more precisely, whose men farmed—most Native American women already grew crops) had a stronger legal claim to the soil than those who hunted.

There were other compensations, larger if riskier, for Indian treaty signatories. The United States’ favored mode of payment for Indian land cessions was the annuity, an annual payment of cash and/or goods that officials first paid to national chiefs and then (after the 1840s) distributed on a per capita basis. Federal officials considered annuities a secret weapon in their government’s hands, regularly renewing Indians’ dependence on the federal government.

Pawnee Indians receiving a government annuity in the 1890s.

Some readily turned that weapon on Native American leaders and families. In 1809 future president William Henry Harrison threatened to withhold annuity payments from the Miamis and Potawatomis unless they ceded 3 million acres to the United States. Seventy years later, Congress refused to give the Lakotas their promised annuities and rations unless they surrendered the sacred Black Hills. (In 1980 the U.S. Supreme Court ruled the seizure illegal and approved monetary compensation for the Lakotas. They did not accept it.)

In the final decades of the nineteenth century, some agents told parents that they would not receive their annuities unless they sent their children to boarding schools. Conversely, philanthropic white reformers like George Manypenny, head of the U.S. Office of Indian Affairs (1853-57), believed that dependence on annuity payments demoralized and degraded Indians. He favored replacing all of them with one-time cash settlements.