Treaty Substitutes in the Modern Era

Treaty Substitutes in the Modern Era


Alexandra Harmon



Although the U.S. Congress prohibited treaties with Indians after 1871, there are significant parallels between treaty negotiations prior to that ban and modern Indian tribes’ negotiations with the federal government regarding land and natural resource claims. The power balance in both cases has been such that the Indian tribes have had to concede that the United States can unilaterally determine most issues about which it will negotiate. In no case has the government been willing to put its ultimate sovereignty within U.S. borders at issue, and certain rights that tribes may wish to obtain or reaffirm have been off limits as a practical matter.

People familiar with Indian policy in the United States sometimes assume that the doctrine of discovery—the claim that European nations acquired title to American land they “discovered,” leaving indigenous inhabitants with a mere right of occupancy—is a relic of the past, along with the corresponding colonial mind-set. On the one hand, since the dawn of the current self-determination policy era in the mid-1960s, the property rights of Indian tribes do seem to be held in higher legal and moral regard than during earlier times. On the other hand, in recent years when the Supreme Court and Congress have faced fresh issues regarding aboriginal property rights, both bodies have returned to approaches that have more in common with the proponents of manifest destiny than the professed self-determination policy. Although current federal policy in support of tribal self-determination has undoubted benefits for the tribes, it is the federal government that defines the outer bounds of tribal sovereignty and dictates those outer bounds in much the same fashion as in the nineteenth century.

Title of Book

The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest



Publication Date


Document Type

Book Chapter


University of Washington Press




Indian treaties, sovereignty


Indigenous, Indian, and Aboriginal Law


Published in cooperation with the University of Washington's Center for the Study of the Pacific Northwest.

This work is available as an e-book from two sources.

Treaty Substitutes in the Modern Era

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