Alexandra Harmon

Indian Treaty History

A Subject for Agile Minds

Studying the history of indian treaties in the Pacific Northwest can be a vigorous workout for any brain. Treaty his-tory is replete with ironic twists and turns, showing us that time often plays tricks on the people who make history. It reminds us that present needs, conceptions of the past, and malleable memories may complicate or even sabotage our efforts to learn what actually happened years ago. In short, it tests our capacity to grasp history's complexity, accept its paradoxes, and understand the past on its own terms.

Recent controversies have highlighted some ironies of Northwest treaty history. In litigation to determine the treaties' modern import, judges have declared that they remain in force even though the treaty-makers correctly anticipated that circumstances would change substantially over time. Indian efforts to enforce the treaties, which were drafted to favor non-Indians, have prompted non-Indians to complain that they are the ones who suffer injustices as a result. Explaining such paradoxes requires us to confront additional paradoxes, because the explanation lies partly in people's tendency to live with contradiction and partly in their impulse to deny or correct contradictions. Thus, the same federal government that adopted incongruous Indian policies also tried for years to simplify its relations with Indians. And people who have accused each other of interpreting the treaties in contradictory ways have themselves at times held contradictory beliefs.

In other words, for those who relish the surprising ramifications, ambiguities, and multiple meanings of history, Northwest Indian treaties should be an intriguing subject, and this issue of the Oregon Historical Quarterly should be a special treat. A collection of essays that consider treaty history from differing angles offers an opportunity to savor that history's delightful intricacy. With the aim of adding to the pleasure of the experience, my essay will sample some of the ironic developments, paradoxes, and complexities that not only make treaty history fascinating but also challenge us to do our best historical thinking.

In 1921, unhappy with restrictions on fishing at a dam in Benton County, members of the Yakama Nation paid a visit to the Washington State Senate and protested the interference with a right reserved to them in an 1855 treaty. Ironically, some of their ancestors initially repudiated the treaty or signed it very reluctantly. Four of the Yakama delegates — Caesar Williams, Kate Williams, Mrs. Homer Watson, and Homer Watson (left to right) — stopped in Seattle, where this photo was taken.

PEMCO Webster and Stevens Collection, Museum of History and Industry, Seattle, 83.10.2, 082.1

Prominent among the ironic turns of Northwest history is the fact that 1850s-vintage compacts with Indians can deter-mine important rights and relations of the region's residents today in circumstances the treaty-makers could not have imagined. The treaties owe their longevity and continuing force to two parallel developments that seemed unlikely when the pacts were signed. None of the parties expected their exchange of promises to be the last word on Indian-American relations, yet Americans preserved the treaties in U.S. law and Indians preserved memories of the treaties as entitlements. The combined effect was to give the agreements a surprising durability.

The Americans who initiated and ratified the treaties apparently viewed them as a temporary expedient. Purporting to believe that Indians could be transformed into de-tribalized small farmers within a generation or so (unless they died out first), U.S. treaty-writers specified a twenty-year plan of payment for Indian lands and gave themselves the power to consolidate or abolish tribal enclaves as conditions changed. Less than forty years later, according to historian Francis Paul Prucha, federal officials were paying little or no attention to Indian treaties, and by the early 1900s most of them "considered the treaty system nearly if not totally defunct." The Supreme Court appeared to sanction that conclusion in 1903 when it ruled that Congress could unilaterally alter or revoke the provisions of a treaty with Indians.¹

The government's expectation that the treaty arrangements of the 1850s would have a short lifespan ultimately faded, however, in part because Americans have adhered to a legal system that exalts continuity, precedent, and written documentation of legal acts. U.S. negotiators put their deals with Indians in writing and sent the documents to the nation's capital, where Congress added the treaties to "the supreme law of the land" and bureaucrats preserved them in public record collections. Decades later, when Indians cited treaty clauses as sources of certain rights and privileges, federal judges found no evidence that Congress had exercised its power to abrogate and, therefore, felt constrained to enforce the treaties.

An analogous shift in perception occurred among Indians. Their assumption that the relationships proclaimed at treaty conferences would be fluid was replaced over time by a belief that the treaties had established an order that is or should be virtually unalterable. For different reasons than the Americans, Indians who marked the treaties probably did not imagine that they were making agreements whose terms would never change. Such treaties had no precedents in their world, but Northwest Natives were used to conducting formalized relations with peoples from territories beyond their own. Those relations were dynamic — not only created but also sustained or altered at periodic ceremonial gatherings, to which the treaty conference had some superficial resemblance.² Furthermore, because the Indians relied on oral communications and individual memories to preserve knowledge of the past, they faced greater odds than the Americans against conveying exact information about the treaty terms to their descendants.³ Nevertheless, Indian memories of the Americans' commitments persisted and retained importance in many minds, for a number of reasons. Over several succeeding decades, U.S. officials initiated periodic gatherings that Indians (including some who had attended treaty conferences) reasonably construed as reaffirmations and adjustments of the relations established by treaty — meetings to discuss reservation sites, annuity distributions, councils with federal inspectors, and dedication ceremonies for federal schools, for example. At the same time, some Indians of the treaty generation made conscious efforts to transmit historical knowledge in their accustomed way — orally — including accounts of the treaties. A few lived long enough to educate literate descendants, who could check their forebears' memories against the record preserved by U.S. officials. One such keeper of historical information was Ruth Sehome Shelton, who was nearly one hundred years old in 1955 when she told a scholar with a tape recorder what her elders had said about the treaties. That included the story of a man who asked Isaac Stevens, the chief American negotiator, "Will it be for as long as the water flows in the rivers ... that it will be ours, and will it be for as long as the sun travels from whence it comes until it returns to the west?" and Stevens's response: "He just nodded his head, sat down."⁴ By the 1960s, U.S. policy makers, many of whom still hoped that their government could eventually terminate its remaining obligations under treaties with Indians, were faced with increasingly assertive Indians who demanded fulfillment of those obligations, saying, "A treaty, in the minds of our people, is an eternal word."⁵

Another ironic turn of history has prompted reappraisals of the treaties' fairness. Many analysts maintain that the American negotiators took unfair advantage of their nation's superior power, with the result that the treaties benefited non-Indians far more than Indians. Nonetheless, it is non-Indians who complain most often today that the treaties put them at a disadvantage, while Indians commonly refer to the treaties in reverential terms and rely on them for significant political leverage.

It is clear, in retrospect anyway, that the power balance at most Indian treaty councils was in the United States' favor. As Prucha concludes, "The treaties both reflected and contributed to the inequality and dependency with which the Indian negotiators faced the federal treaty commissioners."⁶ In Washington Territory, according to federal judge George Boldt, the U.S. government was therefore able to use treaties "rather than conquest as the means to acquire vast Indian lands," which worked "to the great advantage of the people of the United States, not only in property but also in saving lives of citizens."⁷

Like Prucha, legal scholar Charles Wilkinson alleges that Governor and Superintendent of Indian Affairs Isaac Stevens "saw treaty-making as a command-and-obey process, not a negotiation." Wilkinson goes further than Prucha to argue that Stevens exploited American power unconscionably. In Wilkinson's view, the instrument that Stevens "dictated" included "mean-spirited" provisions to force many Indians onto lands where they would not be able to sustain themselves appropriately.⁸ Some Indians, too, have characterized the treaties as bad bargains for their people. "I pity those old people," said one western Washington tribe member in the 1920s when talking about ancestors who had acceded to U.S. treaty negotiators' terms. "If Mr. Stevens had written 'In 75 years your offspring will be exterminated,' they would have signed that, with all the knowledge they had about transacting business.'"⁹ A scant fifty years later, however, it was non-Indians who raised their voices to protest that treaties, applied in modern circumstances, afford Indians an undeserved political and economic edge over other Americans.

In the 1970s, not long after Judge Boldt construed one clause of the Washington treaties as a tribal entitlement to half the state's harvestable salmon, aggrieved non-Indians launched efforts to persuade lawmakers and other Americans that the treaties, or their judicial interpretations, are an affront to the nation's ideal of individual equality because they grant Indians special privileges. On that premise, bills introduced in Congress, such as the so-called Native American Equal Opportunity Act, sought to repeal the treaties and break up tribal assets. And in 1976, two Washington state residents published Indian Treaties: American Nightmare, with a foreword in which the executive vice president of the National Wildlife Federation wrote, "Many critics say the Indians are becoming their own worst enemies. On one hand, they demand special treatment as foreign 'nations,' claiming exemption from federal, state, and local laws. On the other hand they also claim the benefits of full U.S. citizenship — the vote, taxpayer-financed health and education and welfare benefits, and other governmental services."¹⁰

Indians have answered such complaints, in many instances, by characterizing treaty promises as their cherished property rights. In doing so, they have given history yet another ironic twist, turning the tables on nineteenth-century Americans who believed that Indians were ignorant of property's importance and were prone to squander their assets.

Throughout the 1800s and into the 1900s, vocal white Americans regularly linked Indians' perceived backwardness to improvidence and a failure to understand that property is the basis for a civilized society. Those assumptions underlay a clause in the Washington Territory treaties that allowed the president to divide Indian reservations into private plots for individual tribal members. Thirty years later, when Senator Henry L. Dawes (R., Mass.) advocated a law to authorize a similar subdivision of reservations elsewhere in the United States, he said it would be a remedy for Indians' lack of "selfishness, which is at the bottom of civilization."¹¹ What would Dawes think of the Northwest Indians today who maintain that they show greater respect for property rights than those people who urge Congress to annul the treaties? According to an Indian publication lauding Judge Boldt's decision, "The federal court only affirmed the tribes' inherited contract right which their wise forefathers had secured." Likening their "inherited treaty right" to an inherited private home, the authors declare, "The supercitizenship argument is ... a smokescreen to hide the greed of those who want for themselves the property rights the treaties guaranteed to the Indians."¹²

In 1974, George H. Boldt, a U.S. District Court judge for the Western District of Washington (shown here twenty years earlier), ruled on the meaning of a U.S. treaty promise that Indians in Washington Territory could continue fishing at their usual places, "in common with" the territory's citizens. The judge's opinion, written to resolve a long-running controversy, provides a goal-oriented but frequently cited interpretation of treaty history.

OHS neg., OrHi 000828

ON TREATY FISHING RIGHTS

To the great advantage of the people of the United States, not only in property but also in saving lives of citizens, and to expedite providing for what at the time were immediate and imperative national needs, Congress chose treaties rather than conquest as the means to acquire vast Indian lands. It ordered that treaty negotiations with the plaintiff tribes and others in the Northwest be conducted as quickly as possible. Isaac I. Stevens, Governor of Washington Territory, proved to be ideally suited to that purpose for in less than one year during 1854-1855 he negotiated eleven different treaties, each with several different tribes, at various places distant from each other in this rugged and then primitive area. The treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.

—Judge George H. Boldt's decision
United States v. State of Washington, 1974

Charles J. Kappler, ed., Indian Affairs: Laws and Treaties, vol. 2 (Washington, D.C.: GPO, 1904), 696–7; United States v. State of Washington, 384 F. Supp. 3212 (D.C., Tacoma Division 1974), available at www.ccrh.org/comm/river/legal/boldt.htm (accessed July 20, 2005).

The phrase "supercitizenship argument" refers to a contention that Indians cannot claim both the rights reserved in old treaties and the benefits of subsequent changes in their status, especially the acquisition of U.S. and state citizenship, without contradicting themselves. Such a claim, according to critics of treaty rights, is like trying to have one's cake and eat it too. But when the champions of Indian treaty rights respond to that argument with countercharges, they too focus on an apparently contradictory response to historical change. They note that their opponents propose to renounce the treaties without offering to give up resources and privileges acquired via those treaties. Who, they ask, are the ones really hoping to eat and have the cake?

It is not surprising that opponents in debates about Indian treaties have reason to accuse each other of talking out of both sides of their mouths. After all, holding inconsistent beliefs is a common human tendency. Thus, Indians and their supporters have accused the United States of victimizing Indians both by imposing the treaties and by breaking them. They have depicted the treaties as extortionate transactions and instruments of colonial oppression but have also cited the treaties to claim valuable property rights under U.S. law and, in the words of their critics, to "demand special treatment as foreign 'nations.'" Meanwhile, opponents of Indian treaty rights have argued both that treaties "perpetuate the stigma of second-class citizenship" for Indians and that they elevate Indians to supercitizenship.¹³

But there is a more notable reason why contradictory thinking seems virtually unavoidable when the subject is Indian treaties: the treaties themselves present incongruities. Prucha describes them as a political anomaly and gives two interrelated reasons for using that label. First, the treaties embody a "peculiar," improbable relationship between the United States and Indian tribes — a relationship defined by paternalistic federal fiats as well as instruments of international diplomacy.¹⁴ Second, the terms of Indian treaties combine paradoxical or seemingly incompatible elements in an "anomalous whole," particularly by acknowledging both tribal sovereignty and tribal dependency on the United States.

Furthermore, the treaties are artifacts of a larger history of conflicting U.S. approaches to Indian issues. Over the course of more than two hundred years, the federal government has adopted a series of laws and practices that embody vacillating, antithetical judgments about Indians' proper place in the republic. Not only has policy shifted direction several times, but most of the abandoned schemes have had continuing effects. An early policy of moving Indians beyond the areas of white settlement gave way in the 1850s to a policy of isolating Indians on reserved lands within American states. In 1871, lawmakers repudiated a century-long practice of acknowledging Indian tribal sovereignty and landownership by treaty, but they did not void previous treaties. In the 1880s, lawmakers resolved to break up tribal reservations and leadership structures, but fifty years later they rededicated themselves to preserving the tribes and their reservations, only to reverse course twice again at twenty-year intervals. The modern legacies of all those discarded approaches to "the Indian problem" include displaced aboriginal communities, Indian reservations, subdivided and alienated reservation land, a huge bureaucratic apparatus for managing Indian property, federally sanctioned tribal governments, and U.S. citizenship for Indians as well as tribal citizenship. Given the convoluted course and lingering layers of federal Indian policy, it is difficult to analyze the past and present meanings of Indian treaties without making assertions that have conflicting implications. It is also no wonder that people on each side of a debate about the treaties can find ammunition for their cause in the historical record.

At the same time, the human tendency to hold inconsistent ideas is offset by the impulse to organize and reconcile ideas — a desire to reduce or deny some of the world's complexities and contradictions rather than embrace them. And that inclination has also manifested itself in the history of Northwest Indian treaties, both in the conduct of historical actors and in later accounts of events.

A preference for simplicity motivated American officials in the early 1850s as they made plans to treat with Indians so that the colonization of Washington Territory could proceed without conflict. Aware that the many small indigenous communities were both locally autonomous and intricately interlinked but lacking a full understanding of the Indians' political and social relations, Governor Stevens and his colleagues resolved to streamline the treaty-making process and minimize the federal government's subsequent administrative burden by sorting the Indians into a few large groups, which they called tribes. They also vowed to hold U.S.-designated tribal "chiefs" responsible for the bad behavior of individuals who presumably belonged in those "tribes."¹⁵

Despite the intricacy of aboriginal political and social relations, the Americans also imagined that Indians were simple-minded people, unable to grasp the complexities of "white" civilization. Since that implied that technical details of the U.S. proposal would only confuse the Indians, there was no reason to lose sleep over the fact that explaining the treaty terms in the crude Chinook trade jargon would greatly oversimplify them. According to James G. Swan, who observed an unsuccessful treaty council on the Chehalis River, the Indians "all look[ed] on a printed or written document as possessing some wonderful charm." Knowing nothing about law, he added, they wanted the treaty process to be as elementary and uncomplicated as possible. And if the Indians tried to make sense of American governance and treaty conferences by comparing them to indigenous relations and gatherings, as is probable, their concept of the treaties was crude by the Americans' standards. It was no cruder, however, than the Americans' beliefs that Indians who lived in one river valley constituted a cohesive political group and their socially prominent men were the equivalent of Euro-American government officeholders.¹⁶

Successive federal agents continued the effort to make Indian political categories conform to a simple scheme, but indigenous societies were not so easily remolded. Although the American efforts were a major factor in the evolution of today's recognized tribes, Indians of the Pacific Northwest have maintained and created many other fluid group affiliations of their own devising, from treaty times to the present. They have freely crossed the supposed boundaries between tribes and racial categories in order to marry, take up new residences, make use of resources, and form political alliances.¹⁷ Thus, this aspect of treaty history affords an instructive reminder of the dynamic tension between people's urge to organize a messy reality and their contrary penchant for complicating their affairs.

Efforts to make unruly facts fit a neat pattern or tell a straightforward story are also reflected in many historical accounts of Washington Territory's Indian treaties. Of course, all historians do something similar when they construct coherent narratives from a jumble of clues to past events and conditions. "Events in themselves are meaningless," one scholar has observed, and "no pattern of meaning can be imposed upon them without to some extent oversimplifying and distorting their complexity."¹⁸ But in the case of Indian treaties, the selection, organization, and presentation of evidence has often occurred in contexts that intensify the human inclination to prune and simplify elements of a story for the purpose of making a useful point. Few historians of the treaties — professional or amateur — have been unaware that their stories can have serious practical ramifications, and some have fashioned narratives that focus sharply on facts of contemporary, utilitarian concern.

Utilitarian clarity is particularly, though not exclusively, a characteristic of treaty histories generated in the course of litigation. For example, the history of U.S. efforts to reconfigure Indian societies as told by litigants is much less complicated than it could be, given the documentary and ethnographic record. It is either a relatively brief account of uninterrupted collective tribal life or a tale of tribal life forfeited when visible political activity lapsed. Thus, parties to lawsuits about fishing rights or reservation lands have sometimes argued that a tribe named in a treaty did not survive subsequent developments, such as the suspension of federal guardianship, a merger with other groups, individual Indian relocations, or Indians' marriages to outsiders, even though a modern tribe has the same name. Paradoxically, this argument portrays the history of tribal organizations as a messy business, but it rests on a simplistic assumption that the elements of tribal identity are few, clear, and do not change appreciably over time. There is irony, too, in the tribes' standard response, which has been to invoke an equally schematic version of their political history. Rather than acknowledging and explaining the vicissitudes of their tribal associations since the 1850s, they have urged the courts simply to defer to federal officials who declare that there is historical continuity between tribal treaty-signers and today's recognized tribes.¹⁹

It is not just litigants who have viewed treaty history with a utilitarian eye. Judges also have to select, construe, and restate parts of the historical record with practical considerations in mind. Their function is to resolve lawsuits conclusively and apply principles announced in earlier cases, including rules of interpretation. When judges must determine what happened in the past, they announce their conclusions with a focus and a certitude that reflects those mandates. The historical narratives found in court opinions, therefore, lack the details, context, nuance, and admissions of doubt that most historians consider essential to their craft. For example, much of Judge George Boldt's opinion regarding the fishing clause of Washington Territory treaties is a recitation of relevant history, but it says little about the factors that transformed aboriginal villages and extended families into modern tribes. Instead, the opinion, echoing the Bureau of Indian Affairs' version of history, describes a straight, clear line of descent from tribes named in the treaties to those named in the lawsuit. One by one, it states simply that each of the original plaintiff tribes is a political successor of a treaty party.²⁰

The fame or notoriety of Judge Boldt's ruling points up an-other irony worth noting. Even though the treaties are public laws whose existence ultimately depends on the will of the electorate, judges have had far more impact than voters on the course of treaty history. To be sure, ordinary citizens have tried to influence that history and interpret its significance. Some have organized to promote the idea that contemporary perspectives should trump nineteenth-century thinking when a treaty's validity or effect is in question. And in the 1980s a majority of Washington State voters, reacting to years of acrimony about Indians' off-reservation fishing rights, approved an initiative calling on Congress to rescind the treaties that reserved those rights. But lawmakers as well as judges, mindful of Americans' traditional respect for contracts and the need to compensate Indians for reneging on treaty promises, have not been receptive to arguments that the treaties should be invalidated.²¹ As a result, the viability and practical meaning of the treaties have not hinged on the outcomes of legislative or electoral debates about contemporary conditions but on debates about how to read history conducted in courts of law.

By 1971, many young Indians saw the history of Indian treaties with the United States both as a reason to take pride in their ethnic identities and as a reason to be angry at the federal government. They crossed tribal lines to express their anger and their understanding of the treaties in a variety of actions adapted from the black civil rights movement. Here, student demonstrators in Seattle try to put pressure on the Bureau of Indian Affairs to assert and protect Indians' treaty fishing rights.

Seattle Post-Intelligencer Collection, Museum of History and Industry, Seattle, 1986.5.53853.1

Legal doctrine dictates that the meaning assigned to a treaty should reflect the original intent of its authors. The stated task of judges is to produce precise, objective summaries of the documents and circumstances indicating that intent. But of course judges, like the parties appearing before them, do not study the history of treaties for its own sake, and they are hardly oblivious to the contemporary context and probable repercussions of their conclusions regarding history. Their assignment is to declare what those repercussions will be. High-stakes contests cast shadows over the historical records they must interpret, and those shadows limit judges' vision more than the vision of historians. Granted, even academic historians cannot banish the shadows entirely. Any person who studies an obtuse historical record has in mind some questions, information, and circumstances unknown to the makers of that record. But academic historians can afford to ask what happened in the past simply for the sake of knowing. Judges, on the other hand, go to the record solely in order to address present concerns.

Despite the pragmatic aims, scope, and emphases of history written by judges, it has become an important part of the treaty canon. In some circles, Judge Boldt's 1974 ruling is now a standard historical reference work. For a few of the plaintiff tribes, it is the primary published account of their communities' histories. So by writing a significant body of Indian treaty history, judges have added to both the resources and the challenges of other historians. Scholars of Indian treaty history cannot afford to overlook judicial accounts of history, partly because they carry a unique stamp of authority and partly because, in many cases, they are convenient sources of historical data. But scholars who mine court opinions for information need to bear in mind the judges' paradoxical assignment and watch for its effects. Judicial history is the work of people who must infer the intent of long-dead negotiators in order to tell the living how to conduct themselves.

Although the smoke from conflicts about treaty history can make it hard for anyone — historians in the ivory tower as well as judges — to get a clear view of that history, that smoke also has value for historians. It emanates from processes that merit attention. It directs our gaze to situations in which people have expressed their understandings of the treaties; and those expressions reflect the fascinating interplay of history, memory, contemporary context, and identity. The meanings that people have ascribed to treaties are clues to important aspects of their self-conceptions, which in turn influence their actions and their characterizations of the treaties. Therefore, it is as interesting and important to analyze what people have believed about Indian treaties as it is to determine what actually happened at the treaty grounds long ago.

Treaty history richly illustrates something that historian Richard White realized when contemplating discrepancies between the historical record and his mother's stories of life in Ireland during her youth. The stories that people tell about their past, White concluded, have staying power because they are vital to a sense of identity. As an enterprise, history can interrogate such stories, complicate them, or even contradict them, "but it cannot kill them."²² No matter how accurately they reflect what actually happened, stories recount memories that reflect people's sense of their place in the world.

Because the treaties presumed to define relations between Indians and non-Indians, the memories and stories they have inspired are expressions of what it has meant to be Indian or non-Indian. And as the relations of Indians and non-Indians have changed over the decades, some stories have gained while others have lost significance; that is, the stories have gained or lost the power to define people and relations. For example, early in the twentieth century, when many Indians were finding it increasingly difficult to live well off the reservations, the attractions of reservation land grew and memories of American promises to ensure every tribe member a reservation allotment took on new importance. Assertion of one's right to an allotment became a mark of Indian identity. Many years later, as state regulation and environmental change closed off fishing opportunities for Indians, it became more important for Indians to tell stories about tribe members who had continued to insist on their right under the treaties to fish unmolested.²³

Each time the treaties have been the focus of a dispute in a public forum, the people involved have called on historical memories in their efforts to influence the outcome. As a result of the outcome or the act of describing memories or both, some stories have been validated and some have been recast. The disputes and their outcomes are then sources of additional memories, which have taken their place in people's conceptions of Indians and non-Indians. The treaty fishing litigation of the 1970s certainly illustrates that phenomenon. In Judge Boldt's courtroom, Indians told stories that evoked memories of a uniquely Indian devotion to salmon fishing. When the judge's ruling identified the storytellers as beneficiaries of a 120-year-old treaty, it confirmed the power of those stories to say who Indians are today. Andy Fernando, an Upper Skagit tribe member, sensed that power. "For young Indian boys and girls," Fernando wrote in the 1980s, "the Boldt decision shapes a new image of self.... The child is learning that, as Indians, the people form a strong community."²⁴ At the same time, among non-Indian fishers who believed that the judge misread the course of Indians' history, the litigation appeared to call into being a world much different from the one they thought they recalled, where Indians were abandoning their aboriginal habits and were rarely seen or heard to claim special rights.

To say that stories about treaties have changed over time is not to discredit those stories as fiction. Even if historical investigators should conclude that some of the stories lack a strong foundation in actual occurrences, the stories and the memories they embody are inseparable from treaty history because they have historical force: they motivate actions that must also be recorded and analyzed. For historians, then, doing treaty history necessarily entails tracing and explaining people's changing understandings of the treaties — questioning those memories and comparing them with other records of past events but also noting their role in bringing about change or linking the past to the present.

In sum, there are few subjects better suited than Indian treaty history to illustrate one of history's great paradoxes: the past is a place we have never been, where everyone does things very differently than we do, yet elements of the past are always with us, influencing what we do and who we think we are. To see the legacy of Northwest Indian treaties, we need to look at records of the past with clear eyes, striving to understand conditions and events as the people who experienced them did. But our field of vision should extend beyond those people who drafted and marked the treaties to those who have tried to implement, obey, or evade the treaties and even those who have invoked the treaties to address concerns arising long after the 1850s. Understanding treaty history means understanding its meanings and uses for thousands of people in 2005 as well as 1855. Because treaties have always had practical functions, treaty history has always had practical work to do in the present. That fact, more than any other, is what gives treaty history its savory blend of continuity and change, consistency and contradiction, drama and irony. It is history we live with every day, yet it offers us a deep fund of intriguing new mysteries to investigate. The journal editors deserve our gratitude for recognizing that.

Notes

¹ Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (Berkeley: University of California Press, 1994), 362; Treaty with the Duwamish, et al., 12 U.S. Statutes 927, Art. VII; Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

² See William W. Elmendorf, "Coast Salish Status Ranking and Intergroup Ties," Southwestern Journal of Anthropology 27 (1971): 354; Alexandra Harmon, Indians in the Making: Ethnic Relations and Indian Identities around Puget Sound (Berkeley: University of California Press, 1998), 79–80.

³ For a cogent discussion of the limitations and utility of orally transmitted historical traditions, see Jan Vansina, Oral Tradition as History (Madison: University of Wisconsin Press, 1985), 199.

⁴ Vi Hilbert, transcriber and translator, with Jay Miller, Siastnu: "Gram" Ruth Sehome Shelton: The Wisdom of a Tulalip Elder ([Seattle:] Lushootseed Press, 1995), 17–24, 46, 52–3; Harmon, Indians in the Making, 108–11, 157–9, chap. 6. See also Andy Fernando, introduction to Fay G. Cohen, Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights (Seattle: University of Washington Press, 1986), xxiii.

⁵Declaration of Indian Purpose (Chicago: American Indian Chicago Conference, 1961), 15–6, in Prucha, American Indian Treaties, 410.

⁶ Prucha, American Indian Treaties, 5.

⁷United States v. Washington, 384 F. Supp. (W.D. Wash.) 330.

⁸ Charles Wilkinson, Messages from Frank's Landing: A Story of Salmon, Treaties, and the Indian Way (Seattle: University of Washington Press, 2000), 11, 14; Prucha, American Indian Treaties, 251. According to Prucha, "This was not to be a negotiation between two political powers ..., but an imposition upon the Indians of the treaty provisions Stevens brought with him." Francis Paul Prucha, The Great Father: The United States Government and the American Indians, abridged ed. (Norman: University of Oklahoma Press, 1986), 134.

⁹ Transcript, The Duwamish et al. v. United States of America, Consolidated Petition No. F-275 (U.S. Court of Claims, 1927), University of Washington Libraries, microfilm A-7348.

¹⁰ Thomas L. Kimball, foreword to C. Herb Williams and Walt Neubrech, Indian Treaties: American Nightmare (Seattle: Outdoor Empire Publishing, 1976), xii; Prucha, American Indian Treaties, 423.

¹¹ U.S. Board of Indian Commissioners, "Third Annual Meeting of the Lake Mohonk Conference," in Annual Report of the Board of Indian Commissioners (Washington D.C.: GPO, 1886), 86–91.

¹²Understanding Indian Fishing Rights (Taholah and Seattle: Quinualt Education Project, n.d.), n.p.

¹³ Kimball, foreword, xii; Judge Frank Hale, quoted in Williams and Neubrech, Indian Treaties, 2, 84.

¹⁴ Here Prucha echoes the U.S. Supreme Court: "The relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else." Cherokee Nation v. Georgia, 30 United States Reports (5 Peters) 1, 116 (1831); Prucha, American Indian Treaties, 1.

¹⁵ U.S. Office of Indian Affairs, Annual Report of the Commissioner of Indian Affairs for 1853 (Washington, D.C.: GPO, 1853), 456; C.H. Mason to M.T. Simmons, October 11, 1854, and certificate signed by I.I. Stevens and M.T. Simmons, January 22, 1855, in Correspondence, 1854–1886, Record Group 75, M-2011, reel 1, National Archives, Pacific Northwest Region, Seattle.

¹⁶ James G. Swan, The Northwest Coast; or, Three Years' Residence in Washington Territory (1857; reprint, Harper & Brothers, 1969, 1972), 348, 350.

¹⁷ E. J. Allen, Jr., "Intergroup Ties and Exogamy among the Northwest Coast Salish," Northwest Anthropological Research Notes 10 (1976), 161–72; Wayne Suttles, "The Persistence of Intervillage Ties among the Coast Salish," in Coast Salish Essays (Seattle: University of Washington Press, 1987), 209–30; Harmon, Indians in the Making.

¹⁸ W.B. Willcox, "An Historian Looks at Social Change," in The Craft of American History: Selected Essays, ed. A.S. Eisenstadt, vol. 1 (New York: Harper Torchbooks, 1966), 32.

¹⁹ For discussion of court cases in which non-Indian parties challenged the government's pat identification of contemporary tribes as treaty tribes, prompting the tribes to argue that the court should not second-guess the executive branch, see Harmon, Indians in the Making, 1–2, 238–41. By contrast, in an effort to secure treaty fishing rights, the Colville Confederated Tribes asked a court to look beyond tribal categories created for federal administrative purposes and see that some tribe members have historic links to treaty signators. For an interesting account of the difficulty that New England Indians faced when trying to establish in court that they had maintained a continuous tribal existence, see James Clifford, "Identity in Mashpee," in The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (Cambridge, Mass.: Harvard University Press, 1988), 277–346.

²⁰U.S. v. Washington, 384 F. Supp. 359–82.

²¹ Prucha, American Indian Treaties, 19, 386.

²² Richard White, Remembering Ahanagran: Storytelling in a Family's Past (New York: Hill and Wang, 1998), 6.

²³ Harmon, Indians in the Making, chaps. 5, 7.

²⁴ Cohen, Treaties on Trial, xxv. See also Sasha Harmon, "Writing History by Litigation," Columbia (Winter 1990/91): 5–15, 7, 11–14;

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