The history of treaty making began with European countries, mainly Great Britain. The premise for making treaties, had established precedence in two hundred years of British law in America. These laws recognized aboriginal title [original ownership] and the inherent rights attached to it. When the first colonists arrived in Massachusetts and Virginia, they were in desperate need of necessities including land to build their homes and communities. In order to obtain land, they made formal and informal agreements with the Indian tribes who occupied the land. This process was acknowledged and encouraged when the United States formed. The colonist and them, the government, adopted the practice of negotiating formal treaties with Indian tribes. In doing so, they upheld inherent rights attendant to ownership in land. In series of proclamations and ordinances issued between 1783, 1786, and 1787, the Continental Congress defined the central role between Indian nations and the central government. The 1787 Northwest Ordinance, held that:
The utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made for preventing wrong being done to them, and for preserving peace and friendship with them.
The United States Constitution, ratified in 1789, confirmed the federal role in Indian policy by assigning Congress the authority to involve itself in Indian Affairs. The Commerce Clause (art. I, s. 2, cl. 3) and the Treaty Clause (art. II, s. 2, cl. 2) of the United States Constitution granted authority to the United States Government to enter into treaties with Indian tribes. The first treaty made with the United States was with the Delaware in 1778. After that time, 370 treaties were entered into between American Indian tribes and the United States. Through the treaty process the United States acquired lands and legal [trust] responsibilities. The tribes ceded lands and obtained Federal commitments for annuities, provisions for education, and other forms of compensation in return. For further information, see the section on Sovereignty in the Tribal Government Page.
Sweet Corn Treaty
In 1858 with the assistance of the US Government, the Chippewa and Dakota defined their boundaries within the Sweet Corn Treaty. The land defined as Chippewa land is described as:
Commencing at the mouth of the river Wahtab, thence ascending its course and running through Lake Wahtab: from thence taking a westerly course and passing through the fork of the Sauk River: thence running in a northerly direction through Otter Tail Lake and striking the Red River at the mouth of Buffalo River: thence following the course of the Red River down to the mouth of Goose River: thence ascending the course of Goose River up to its source: after leaving the Lake, continuing its western course to Maison au Chine: from thence taking a northwesterly direction to its terminus at a point on the Missouri River within gunshot sound of Little River.
In the treaty between the Chippewa and Dakota, they agreed to abide by the boundaries, as well as allowing each other, in a neighborly manner, to hunt on each other’s land if game was scarce on either side. They also agreed, that depredations by members of each tribe, such as stealing horses, needed to be dealt with, either by return of property, or repayment for damages. These articles were agreed upon thirty-three years earlier by the forefathers of these two tribes, Chief Waanatan (He Who Rushes On) Dakota, and Chief Emay das kah (Flat Mouth) Chippewa. To bind the treaty, oral history states that there was an exchange of tribal members. “We will not make war against our grandchildren” was a statement made by the treaty signers.
The United States Government and settlers wanted to prove that the Chippewa did not hold aboriginal claim to the land that was intended to become their reservation. A Grand Council meeting was held between the Chippewa and Dakota at a point north of the Sheyenne River and west of Devils Lake in July of 1858. Chiefs involved in the signing of this treaty were Mattonwakan, Chief of the Yanktons, and La Terre Qui Purle, Chief of the Sisseton Band. Also, signing was a large representation of braves and warriors of the Dakota Tribes. Representing the Chippewa was Chief Wilkie known as Narbexxa who was a well-respected follower of Little Shell.
Based on the documentation from the Sweet Corn Treaty, the Chippewa were able to claim 11 million acres of land that the government wanted for a public domain. The land described in the Sweet Corn Treaty was used later by the government and provided supportive documentation of Chippewa title in the Old Crossing Treaty and even later the McCumber Agreement.
Old Crossing Treaty
By 1863 the Chippewa occupied over one-third of what is now the State of North Dakota, which included the Red River Valley. With the American philosophy of manifest destiny and the Homestead Act, settlers petitioned Washington to pressure government officials to make treaties with the Indians who had the rights to the land. The settler’s rich and fertile agricultural area.
On October 2, 1863, at the Old Crossing of the Red Lake River in Minnesota, the Chippewa Chiefs, headmen, and warriors of the Red Lake and Pembina Bands met with Alexander Ramsey and Ashley C. Morrill, Commissioners for the United States Government. The purpose of the meeting was to obtain Chippewa land through the treaty process. The Chippewa were represented by the Chiefs of Red Lake and Pembina. The Red Lake chiefs were: Monsomo, (Moose Dung) Kaw-was-ke-ne-kay, (Broken Arm) May-dwa-gum-on-ind, (He That is Spoken To) and Leading Feather. The Chiefs of the Pembina Band were Aseanse (Little Shell II) and Miscomukquah (Red Bear)
The Chippewa signed the treaty under protest. The government attained 11 million acres of land and opened it up to white settlers. The land extended about 35 miles on either side of the Red River from the Canadian border to near Fargo. The land was acquired at eight cents per acre.
Red River Uprising
After the Chippewa ceded the Red River Territory in the 1863 Old Crossing Treaty, the land to the south of the 49th parallel was opened as public domain lands. The Métis to the north of the boundary were being denied their land holdings on ancestral lands by the Government of Canada. For more than fifty years the Canadian Métis had made this northern territory their home. They had developed small river front settlements and began to use the land for agricultural purposes to supplement heir livelihood. Prior to this time, many Métis had settled south of the International boundary line. In 1823, when Major Stephen H. Long surveyed the International Boundary, he established that Pembina was in United States territory. The Métis had settled in Pembina because of its proximity to the trade routes, and the relationships they had established at the Pembina trading post. The Hudson Bay Company, on the other hand, was within the Canadian boundary. Because the Métis relied on the Hudson Bay Company as their market for trade goods, the Company was able to coerce many Métis traders to move north across the International Boundary into Canadian jurisdiction.
In 1865, the Métis were discontent. The Red River Métis were aware their land holdings were in jeopardy. The Canadian Government would not listen to their grievances. No longer satisfied, the Métis joined together, under the leadership of Louis Riel Jr., and rebelled against the Dominion of Canada. Canada was in the process of becoming its own country. The Hudson Bay Company had just surrendered title to these lands. In addition, Canada, at this time, was legally without a government. Riel developed a “Bill of Rights” and he and his supporters formed Provisional Government in November of 1869, to represent the Métis. Riel also developed a list of grievances that would benefit Canadian, English, American, and Indian people alike. The document provided for religious, cultural, language, and land rights. Riel, and his supporters, formally declared the establishment of a provisional government in November of 1869, and demanded rights as loyal citizens of the Crown.
The situation got out of control for Riel and his followers. The provisional government took hostile locals as prisoners and one of them was executed. The opposing Canadian officials and the new Governor of Canada, commissioned troops and forced Riel and his armed followers to flee for their lives. Although the “Bill of Rights” Riel developed was implemented by the Canadian government and known as the Manitoba Act, Riel and his supporters were not granted amnesty for their actions. Louis Riel was exiled from Canada for five years.
Louis Riel, became a United States citizen, married Margaret Monette, and was living in Montana in 1885, when he was approached by a group of Métis from Prince Albert, Canada, requesting help. Riel again drafted a petition, which listed the grievances of settlers and Métis. Again, the petition was ignored. After actual battles with the British, Louis Riel surrendered himself and was brought to trial. This man, who fought so hard for the rights of the Métis, was accused of being a traitor. Riel, a French Métis Catholic, was tried for committing acts of treason against Canada and found guilty by a jury of English Protestants. Riel was hung at Regina, Manitoba, in 1885. With the death of Riel, many of his followers fled to the Turtle Mountains to seek political refuge among relatives. This event created an influx of Métis to the Turtle Mountains.
Throughout the treaty era, the Indian people witnessed the inconsistent behavior of the United States Government. They lived and witnessed the false hope of the government and were left with little or no land, and were poverty stricken. The trust between the Indians and the government had dissipated. The United States, following the civil war, could ill afford to continue its treaty making. As a result, the President established the Grants Peace Commission in1868, and proposed a policy to make agreements with all of the tribal nations across the country. This policy was to bring about an end to the Indian wars on the plains, and to open the routes west for an ever-growing flood of emigrants. In 1871, Congress revised its policy of “treaty-making” and continued to negotiate, but called the process “agreements” rather than treaties. The era of making treaties was coming to an end.
The first agreement to be made with the Pembina Band of Chippewa was the McCumber Agreement. The Chippewa occupied the east and north central part of North Dakota, a favorite hunting and wintering ground. The hunting and trapping lifestyle of the Chippewa kept them moving throughout the year. During their absence settlers began to occupy Chippewa lands. There were requests from settlers to remove the Indians from North Dakota. Politicians even refused to credit the Chippewa for their aboriginal title to the lands. The government attempted to move the Turtle Mountain Chippewa to White Earth in Minnesota, but because of the provisions in the Sweet Corn Treaty with the Dakota, the Chippewa’s’ claim remained valid.
Some of the people moved to White Earth. Little Shell III and his band stayed in the Turtle Mountains, White settlers, hungry for land, continued to encroach on the Chippewa’s territory in the Turtle Mountains. In July of 1892, Little Shell III, and his followers, posted signs in the Turtle Mountains stating:
It is here forbidden to any white man to encroach upon this Indian land by settling upon it before a treaty being made with the American government.
Little Shell’s warning caused settlers to petition the government to open lands claimed by the Turtle Mountain Chippewa. By October of 1882, the Secretary of the Interior had opened up lands for settlement without negotiating with the Chippewa. When the government put the lands of the Turtle Mountain Band of Chippewa into the public domain, and began to issue homesteads to white settlers, a delegation of tribal members went to Washington. Their task was to petition the government and be recognized to their right to nearly 10 million acres of land in North Dakota.
Chief Little Shell III did not agree with the McCumber Agreement and refused to sign. Because of his refusal to sign, the government would not recognize Chief Little Shell and his Grand Council of 24 as hereditary leaders of the Band. Since they did not recognize Little Shell, U.S. Indian Agent John Waugh handpicked a council of 16 full bloods and 16 mixed-bloods to meet with the Commissioners. This group has been referred to as the “Council of 32.” This process was all done while Little Shell was in Montana. During the absence of Little Shell, the second Chief, Red Thunder, presided over the 24 member council meeting. In this meeting they agreed to enlist John B. Bottineau as their attorney. They also decided that all the mixed-blood descendants were members of the band, an action that was agreed to by more than 300 members present. In 1892, Red Thunder addressed the McCumber Commission:
When you (white men) first put your foot upon this land of ours, you found no one but the red man and the Indian woman by whom you have begotten a large family. Pointing to the half-breeds present, he said: “ Those are the children and descendants of that woman, they must be recognized as members of this tribe.” (Executive Orders of 1882 and 1884).
One of the provisions of the McCumber Agreement required a census be taken. McCumber’s agent reported small numbers (about 25 full-blood families) were living in the Turtle Mountain areas. Because of the way the rolls were taken, many were not fairly represented. Little Shell and his followers were excluded for the rolls, leaving a total of 520 people stricken from the rolls. Little Shell and Red Thunder protested this action. Many of the people who were removed from the roll moved to Montana.
Little Shell Protest 1892
In the early 1880’s, there were severe drought and several brutal winters. Many people starved. The McCumber Commission of September 21, 1892, was attended by P.J. McCumber, John Wilson, and W.W. Flemming at the Turtle Mountain Indian Agency. They met with Agent Waugh, and his “handpicked committee of 32,” who had not been agreed upon or recognized by the Turtle Mountain Band. The purpose of the meeting was to negotiate with the Turtle Mountain people on the cession and relinquishment of lands claimed by them, and to determine the numbers who were entitled to be listed on the rolls. (Act of Congress, Chapter 164, p. 139, 1st Session, 52nd Congress).
The meetings were held at the agency storehouse, which was inadequate in size. After Agent Waugh and his group were inside only enough room was left for about one-forth of the tribe to be present. Those that were present were obstructed by partitions and supplies. As a result, the proceedings were difficult to hear or understand.
Upon their arrival at the meeting, Little Shell and his council were informed they were not invited and their people would not be fed. Waugh apologized to the commission saying that the Indians misunderstood his letter to them. However, his letter, in fact, stated the commission would be at the agency to meet with them. Little Shell and his followers were turned away, and told that if they had anything to do, they had better do it. Little Shell left the meeting.
John B. Bottineau, attorney for the Turtle Mountain Band, reported to Little Shell the action of the Commission regarding enrollment. The commission turned away many members of the band who were starving. Many desolate, starving people returned home. In spite of their pitiful condition, they took a collection amongst themselves to allow Little Shell and his council to represent them at the proceedings.
Little Shell addressed the Commission asking that Reverend Father J. F. Malo, their Catholic Priest, Bottineau, their attorney, and Judge Burke of Rolette County, to be present on their behalf. The Commission allowed their presence, and Little Shell expressed his hope for a successful settlement of both parties. He then introduced Red Thunder to the commission. In Red Thunders’ address, he told of the inclusion of the mixed-bloods as members of their tribe and described the suffering of his people. In his concluding statements he said:
“We are all glad that our Great Father sent you here and we hope that you will relieve us from starvation, for we have nothing to eat.”
The Commission justified not feeding the people by stating that the Chippewa misunderstood Major Waugh’s letter and he would only feed those selected by the United States government. The Committee suggested that Little Shell stay and help with the rolls. However, Little Shell and his followers left, designating attorney Bottineau to act in their behalf. Bottineau, realizing a great injustice had been done concerning the rolls, requested the commission to give him a list of those excluded from the list, to appeal for them. They never provided him the information. Instead, they hung a list of people rejected from the roll on the church doors on September 24, 1892. Bottineau then requested access to the rolls. The commission agreed, but E. W. Brenner, Farmer in Charge, refused to provide access to Bottineau, only giving numbers of those eligible and numbers of those rejected.
Little Shell was unwilling to give up. He gathered lists from each family containing their family members, so they would be considered for the rolls. One hour before the next meeting of the Commission, they ordered that Little Shell withdraw from the reservation, or they would arrest him. They astonished the people. They felt the absence of Little Shell and Bottineau would be disastrous. In unison they shouted:
“You shall not go,” meaning that their attorney Bottineau, should not go, some going so far as to utter, “This is death to us; better meet it now than starve to death.”
After a discussion between Little Shell, his council, Bottineau, and Judge Burke, it was decided they should leave. Waugh’s committee of thirty-two accepted the terms of the agreement. The tribe as a whole did not recognize the committee of thirty-two, they had no right to handle the affairs of the tribe. Upon conclusion of the meetings, the committee of thirty-two realized the grave mistake they had made and reported this to Little Shell. They knew what was taking place but offered no alternative to the situation.
On October 24, 1892, Chief Little Shell and his councilmen filed a protest with Congress against the ratification of the proposed McCumber Agreement. With the assistance of Bottineau, J. B. Ledeqult, special interpreter, and Judge John Burke, the protest outlined the grievances of the Turtle Mountain people. They disagreed with the government’s negotiations with the committee of thirty-two, who were not the recognized Grand Council of the Band. They also protested to the inappropriate conditions of the meeting place, and the threats by Agent Waugh of removing them from their lands. The payment of the settlement was also considered inadequate. It discriminated against the Chippewa. Other treaties and tribes were getting anywhere from .50 cents to $2.50 per acre. In addition, non-Indian lands were valued even higher. The proposed ten cents per acre was unacceptable. Lastly, the agreement lacked sufficient assistance for education of the children. Congress never considered Little Shell’s protest.