How meaningful was the decision by Congress to end treaty-making in 1871? Alaina Roberts sees it both as “an astonishing milestone” and part of a “series of events and deliberate legislative acts that gradually weakened tribal sovereignty.” Focusing on the Indian Territory, Roberts argues that along with the 1862 Homestead Act, the Reconstruction treaties imposed upon those Native nations that sided with the Confederacy, and the Dawes Act, the end to treaty-making “led to an increase in corporate exploitation of the Trans-Mississippi West.”

If we look at the question from a wider perspective, however, what seems new in the Indian Territory might not be new at all. The 1866 Reconstruction treaties with the “Five Tribes” may have been less innovative than Roberts suggests. New York State began talking about allotting land in its treaties with the Oneidas in the early nineteenth century, as did the U.S. Commissioner of Indian Affairs T. Hartley Crawford in 1838.Footnote ¹ Some of the earliest federal concentration treaties included plans for allotment, and those plans were put into effect well before the passage of the Dawes Act.Footnote ² Federal and state officials, long before Ely Parker, questioned the efficacy and appropriateness of negotiating treaties with Native peoples. John C. Calhoun, serving as Secretary of War in 1818, said that Indians “neither are, nor ought to be, considered as independent nations,” and that “our views of their interest, and not their own ought to govern them.”Footnote ³ And of course acquisition of tribal lands began well before 1871 in ways that encroached upon the sovereignty of Native nations. There was nothing incompatible about negotiating treaties and the exploitation of Native American lands by a variety of business interests.

Certainly the Indian Appropriation Act of 1871, which included the provision officially ending treaty-making, was “not the first legislative act to weaken tribal sovereignty,” and indeed it signified as Roberts points out, “a sweeping change in the way the United States thought about Indian nations.” But that long sweep spanned the entirety of the nineteenth century at least. Assertions of nationhood and sovereignty, among the relocated tribes and others, long predated 1871 and continued long thereafter.Footnote ⁴

Rather than looking at the legislative history, it might be more worthwhile to examine how this particular change in policy was perceived in the Indian Territory. What did it matter on the ground? In the lived experiences of Indigenous peoples who contended with settlers and squatters, timber cutters, cattle rustlers, railroad men, missionaries, and federal agents, how big a deal was a congressional determination to enter into no more treaties with Native peoples?

The year 1871 was indeed important in the long American assault on Indigenous sovereignty. But it did not erase Indigenous nationhood, a point that the recent McGirt decision by the Supreme Court made so abundantly clear.Footnote ⁵