Broken Treaties With Native Americans: 1778 to Today

Between 1778 and 1871, the United States signed roughly 374 treaties with Native American nations and broke nearly every one. The record of broken treaties with Native Americans is not a story of occasional lapses. It is a pattern carried out through military force, fraudulent negotiations, congressional statutes that overrode signed agreements, and judicial doctrines that stripped tribes of the power to enforce what they had been promised. Hundreds of millions of acres changed hands. Entire peoples were forcibly relocated or dissolved as political entities. And the legal aftershocks still shape tribal sovereignty, land claims, and jurisdictional fights in the courts today.¹

Treaties That Were Supposed to Be the Supreme Law of the Land

The first treaty between the United States and a Native nation was the 1778 Treaty with the Delawares, signed during the Revolutionary War. Over the next ninety-three years, Congress ratified about 374 treaties covering land cessions, peace agreements, trade, and mutual obligations.¹ Under the Supremacy Clause, these agreements carried the same weight as treaties with foreign governments: the “supreme law of the land.”

In practice the negotiations were rarely equal. Federal commissioners exploited internal tribal divisions, negotiated with unauthorized factions, and inserted terms after signing ceremonies. The National Museum of the American Indian describes the treaties as “often broken” and “sometimes coerced.”¹ Congress ended formal treaty-making with tribes in 1871. Existing treaties remained legally binding, at least on paper.

Removal Treaties and the Trail of Tears

President Andrew Jackson signed the Indian Removal Act on May 28, 1830, authorizing him to negotiate treaties exchanging tribal homelands east of the Mississippi for territory in the West.² The law passed by a slim margin over the objection of lawmakers who said it violated prior treaty promises.³ Jackson personally negotiated nine of the eleven major removal treaties, using pressure, bribery, and threats to secure signatures.⁴

The Cherokee case shows how a treaty itself could become the mechanism of dispossession. In December 1835, federal commissioners negotiated the Treaty of New Echota with a minority faction of roughly 300 to 500 Cherokees, none of them elected officials of the Cherokee Nation. Twenty people signed. More than 15,000 Cherokees protested the document as illegal.⁵ It ceded all Cherokee territory east of the Mississippi for $5 million and new lands in Indian Territory.⁶ The Senate ratified it by a single vote in May 1836 over protests from Daniel Webster and Henry Clay.⁴

In May 1838, federal troops and state militia began rounding up Cherokee families and holding them in stockades before forcing them west. About 4,000 of the roughly 16,000 Cherokees removed died along the way, nearly one-fifth of the population.⁵ The Creek, Chickasaw, Choctaw, and Seminole nations went through similar forced removals. By the end of Jackson’s presidency, nearly 70 removal treaties had been signed, relocating about 50,000 eastern Indians and opening 25 million acres to white settlement and the expansion of slavery.²

Winning in Court, Losing on the Ground

Sometimes the tribes won and it still didn’t matter. In Worcester v. Georgia (1832), the Supreme Court ruled 5–1 that the Cherokee Nation was a “distinct community, occupying its own territory” where Georgia’s laws had no force.⁷ Chief Justice John Marshall held that Indian nations were independent political communities with inherent sovereignty, and that only the federal government could regulate relations with them.⁸

Jackson refused to enforce it. He wrote to a brigadier general that the Court’s decision had “fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” Samuel Worcester, the missionary at the center of the case, stayed imprisoned in a Georgia penitentiary until his pardon in January 1833.⁹ Cherokee removal went forward six years later. The ruling that failed to save the Cherokee would become a foundational precedent for modern tribal sovereignty law, but only after more than a century of further treaty-breaking.

The Medicine Lodge Treaty and the Three-Fourths Clause

The 1867 Medicine Lodge Treaty, signed at Medicine Lodge Creek in present-day Kansas, was meant to bring peace between the United States and the Kiowa, Comanche, Arapaho, Kiowa-Apache, and Southern Cheyenne nations. It established a 2.9-million-acre reservation for the Comanches and Kiowas and a 4.3-million-acre reservation for the Cheyenne and Arapaho. It included a specific protection: no further land would be taken without the agreement of three-fourths of the adult male population.¹⁰

Within a year, annuity payments were withheld and General William T. Sherman worked to obstruct tribal hunting rights.¹⁰ Captain Barnitz, a cavalry officer present at the signing, recorded that tribal leaders did not understand they were “giving up” their land and predicted the treaty would “amount to nothing.” By November 1868, the Seventh Cavalry attacked a Cheyenne village at the Washita River and killed Black Kettle, a chief who had been a proponent of peace.¹¹ The promised permanent homelands gave way to forced confinement, restricted movement, and suppression of tribal religion and governance.

The Nez Perce and the “Thief Treaty”

A treaty could also be broken by writing a new one. An 1855 treaty established a 7.5-million-acre Nez Perce reservation in the Pacific Northwest.¹² After gold was found on that land, federal negotiators returned in 1863 with a replacement treaty that slashed the reservation by 90 percent. The government sought a single “head chief” to represent the whole nation, despite the Nez Perce governing themselves as autonomous bands with no central authority. It negotiated with a leader named Lawyer while other chiefs, including Chief Joseph, refused to participate and considered the agreement illegitimate.¹³

The government then claimed the 1863 treaty bound every Nez Perce band, including those that never signed. When the non-treaty bands were ordered onto the diminished reservation in 1877, Chief Joseph and several hundred followers refused. What followed was a 126-day, 1,170-mile flight across four states, ending 40 miles short of the Canadian border at the Battle of Bear Paw.¹⁴ Survivors were sent to Indian Territory in Oklahoma. The current Nez Perce reservation is 770,000 acres, about one-tenth of what the 1855 treaty promised.¹²

The Black Hills and the Fort Laramie Treaty

The 1868 Treaty of Fort Laramie, signed between the United States and bands of the Sioux Nation and the Arapaho, established the Great Sioux Reservation, including the Black Hills, for the “absolute and undisturbed use and occupation” of the Sioux. No one could pass over, settle upon, or reside on the land without authorization. Any future cession required the signatures of at least three-fourths of adult male Sioux.¹⁵

In 1874, General George A. Custer led a military expedition into the Black Hills accompanied by gold-seeking miners. After gold was discovered, miners flooded Sioux territory in violation of the treaty.¹⁵ After the 1876 Battle of the Little Bighorn, the government presented an “agreement” demanding the Sioux relinquish the Black Hills. About 10 percent of adult male Sioux signed, far short of the required three-fourths.¹⁶ Congress enacted the agreement into law in February 1877 anyway.

The legal fight lasted more than a century. In United States v. Sioux Nation of Indians (1980), the Supreme Court ruled that the 1877 Act was a compensable taking under the Fifth Amendment and awarded $17.1 million, the fair market value of the Black Hills in 1877, plus interest, for a total judgment initially set at $102 million.¹⁷ The Sioux have never accepted the money and maintain the land was stolen and not for sale. The combined trust fund, including a separate $40 million award for other lands taken outside the Great Sioux Reservation, now exceeds $2 billion and sits in the U.S. Treasury.¹⁸ Ownership of the Black Hills remains a live legal dispute.¹⁵

The Dawes Act: Breaking Treaties by Statute

Where removal and military campaigns broke treaties by force, the Dawes Act of 1887 did it through administrative machinery. The General Allotment Act authorized the president to divide communally held reservation lands, lands guaranteed by treaty, into individual parcels. Heads of families received a quarter-section (160 acres of farmland or 320 acres of grazing land), and all remaining “surplus” land was opened to non-Native settlers.¹⁹

Native American landholdings fell from about 138 million acres in 1887 to 48 million acres by 1934, a loss of roughly 90 million acres in under fifty years. Allotted lands were frequently arid and unsuitable for farming. The government held title in trust for 25 years, during which tribal members could not sell or control their own property; after the trust period expired, many owners lost their land to tax foreclosure or sold for minimal value.²⁰ When original allottees died, ownership fractured among heirs, creating a checkerboard pattern of tiny parcels that still hampers tribal governance and economic development.²¹

Lone Wolf v. Hitchcock and Congress’s Power to Abrogate

The doctrine that legalized much of this damage was set out in Lone Wolf v. Hitchcock (1903). Lone Wolf, a Kiowa chief, sued the Secretary of the Interior, arguing that an agreement ceding more than two million acres of Kiowa, Comanche, and Apache reservation land was invalid because it lacked the three-fourths majority required by the Medicine Lodge Treaty and had been obtained through fraud.²²

The Supreme Court ruled unanimously against him. Justice Edward D. White wrote that Congress possesses “plenary authority” over Indian tribal relations and the power to unilaterally abrogate treaties. The judiciary, White wrote, could not inquire into the motives behind such legislation and must “presume that Congress acted in perfect good faith.”²³ The ruling made treaty protections legally subordinate to the will of Congress and removed the primary judicial check on federal power over tribal property. It became a cornerstone of the allotment era, facilitating what one account describes as a 90 percent reduction in Kiowa landholdings. In 1955, the Indian Claims Commission awarded the Kiowas, Comanches, and Plains Apaches $2 million for the lands taken during this period.²²

Termination: Ending the Tribes Themselves

In 1953, Congress adopted House Concurrent Resolution 108, declaring that federal supervision, recognition, and aid for certain tribes should end entirely. The policy, known as termination, dissolved tribal governments, ended federal trust protections, and transferred criminal and civil jurisdiction over tribal lands to state authorities. Between 1953 and 1970, Congress initiated 60 separate termination proceedings, and tribes lost more than three million acres.²⁴

The Menominee Tribe of Wisconsin shows the effect. Congress passed the Menominee Termination Act in 1954, pressuring the tribe to accept by threatening to withhold an $8.5 million judgment award. When termination took effect in 1961, the reservation became Menominee County and tribal assets were transferred to a corporation. Tribal cash reserves fell from over $10 million in 1954 to $300,000 by 1964 as the loss of federal funding, the closure of the reservation hospital, and a non-viable local tax base devastated the community. President Nixon signed the Menominee Restoration Act in December 1973 reversing the termination, and his administration formally repudiated the policy, shifting federal Indian affairs toward self-determination.²⁵

Treaty Rights That Survived

Not every treaty right has been nullified. Some of the most consequential modern legal battles have been fought to enforce rights the treaties explicitly reserved.

Fishing Rights and the Boldt Decision

In United States v. Washington (1974), the Boldt Decision, a federal court ruled that Pacific Northwest tribes retained the right to harvest up to 50 percent of the harvestable fish passing through their traditional fishing areas, that states could regulate treaty fishing only when “reasonable and necessary for conservation,” and that tribes possessed the authority to manage their own fisheries as co-managers alongside the state. A later sub-proceeding, the Culverts Case, extended that principle to habitat protection, requiring Washington to correct road culverts that blocked fish passage.²⁶ Tribes now operate as full co-managers of Pacific Northwest fisheries, maintaining their own scientific departments, law enforcement, and judicial systems.²⁷

Water Rights and the Winters Doctrine

In Winters v. United States (1908), the Supreme Court held that when the government created the Fort Belknap Indian Reservation on arid land, it implicitly reserved enough water from the Milk River to make the reservation viable as a permanent home. These implied water rights are senior to later claims under state law and cannot be forfeited through non-use.²⁸ The Winters doctrine remains the foundation for tribal water claims across the arid West, though many of those rights remain unquantified or inaccessible. More than 30 percent of Navajos on the reservation still lack running water. In Arizona v. Navajo Nation (2023), the Supreme Court ruled that while tribes hold implied water rights, the government has no affirmative obligation to secure water for them unless a treaty contains “specific rights-creating or duty-imposing language,” a decision that narrowed the path to judicial enforcement.²⁹

McGirt, Castro-Huerta, and the Modern Jurisdiction Fight

In McGirt v. Oklahoma (2020), the Supreme Court ruled that the Muscogee (Creek) Nation’s reservation in eastern Oklahoma was never disestablished by Congress and remains “Indian Country” for purposes of criminal jurisdiction. Oklahoma courts then affirmed the reservation status of nine additional tribes, including the Cherokee, Choctaw, Chickasaw, and Seminole nations.³⁰ It was the most significant affirmation of treaty-based reservation boundaries in decades.

Two years later, in Oklahoma v. Castro-Huerta (2022), a 5–4 majority reversed course. Justice Kavanaugh’s opinion held that states have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country, a position tribal leaders and the Department of the Interior called a rollback of nearly 200 years of precedent. In dissent, Justice Gorsuch argued the majority contradicted “the plain language of federal treaties and statutes” and the historical protections afforded to tribal sovereignty, citing Worcester v. Georgia for the rule that tribes retain their sovereignty unless Congress ordains otherwise. Assistant Secretary of the Interior Bryan Newland testified that the ruling creates “uncertainty across Indian Country” because state prosecutors can now accept or decline cases in Indian Country without tribal consent.³¹

Standing Rock and the 1868 Treaty Today

The Standing Rock Sioux Tribe’s fight against the Dakota Access Pipeline is one of the most visible modern assertions of treaty rights. The pipeline crosses the Missouri River and Lake Oahe within a half-mile of the Standing Rock reservation, through land the tribe says was taken from the Great Sioux Reservation by Congress in 1958 and contains significant cultural and burial sites.³² The tribe cites the 1868 Fort Laramie Treaty’s promise of “absolute and undisturbed use and occupation” of Sioux lands.

In 2020, a federal judge revoked the pipeline’s easement after finding the Army Corps of Engineers had failed to complete required environmental reviews and ordered a full environmental impact statement. An appellate court reversed the order to shut down the pipeline, and it has continued to operate throughout the litigation, moving up to 1.1 million barrels of crude oil per day from North Dakota to Illinois. The Army Corps completed the final environmental impact statement in December 2025 and signed a Record of Decision in May 2026 granting a new easement with additional conditions, including enhanced leak detection and groundwater monitoring.³² The Standing Rock Sioux Tribe has appealed a March 2025 dismissal of its latest lawsuit to the D.C. Circuit, arguing the pipeline cannot lawfully operate without a valid easement.³³

The Federal Trust Responsibility

The legal relationship between the United States and tribal nations is governed by what the Bureau of Indian Affairs calls a “legally enforceable fiduciary obligation,” the federal trust responsibility. It requires the government to protect tribal treaty rights, lands, assets, and resources. The doctrine traces to Chief Justice Marshall’s characterization of the tribal-federal relationship in Cherokee Nation v. Georgia (1831) and was deepened in Seminole Nation v. United States (1942), where the Court stated the United States “has charged itself with moral obligations of the highest responsibility and trust.”³⁴ The Native American Rights Fund describes this obligation as one tribal nations “prepaid” with their lands and resources.³⁵

Courts have grown less willing to enforce that obligation in recent decades. Legal scholars describe judicial enforcement as “more rare and limited in scope,” with significant aspects of the responsibility shifting from the courts to Congress and the executive branch.³⁶ The political branches have settled numerous breach-of-trust claims and expanded the doctrine to encompass tribal self-determination, but accountability remains uneven.

Where Things Stand Now

As of early 2026, Congress has taken several actions touching on treaty-related land and tribal governance. The Wounded Knee Massacre Memorial and Sacred Site Act, signed into law on December 19, 2025, directs the Secretary of the Interior to place approximately 40 acres at the site of the 1890 Wounded Knee massacre on the Pine Ridge Indian Reservation into restricted fee status for the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe. The law identifies both tribes as signatories to the 1868 Fort Laramie Treaty.³⁷ The Alaska Native Village Municipal Lands Restoration Act of 2025 removed requirements for village corporations to convey land in trust to the State of Alaska, and the Tribal Trust Land Homeownership Act of 2025 set deadlines for the BIA to process mortgage packages on Indian land.³⁸

The FY 2026 appropriations process preserved Indian Country funding at previous levels, rejecting a proposed $1 billion cut to tribal programs.³⁹ Executive orders requiring the elimination of DEI-related federal programs prompted the Department of the Interior and the Department of Health and Human Services to issue clarifications that those orders should not impair federal treaty and trust obligations to tribal nations.⁴⁰ The tension between the treaty-based obligations the government has accumulated over two and a half centuries and its willingness to honor them on any given day remains, as it has always been, the central story.

1
National Museum of the American Indian. Nation to Nation: Treaties Between the United States and American Indian Nations
2
National Archives. Jackson’s Message to Congress on Indian Removal
3
National Museum of the American Indian. American Indian Removal: What Does It Mean to Remove a People
4
U.S. Department of State, Office of the Historian. Indian Treaties and the Removal Act of 1830
5
National Park Service. What Happened on the Trail of Tears
6
National Museum of the American Indian. Treaty of New Echota, 1835
7
Justia. Worcester v. Georgia, 31 U.S. 515
8
Britannica. Worcester v. Georgia
9
New Georgia Encyclopedia. Worcester v. Georgia
10
Smithsonian Magazine. How the 1867 Medicine Lodge Treaty Changed Plains Indian Tribes Forever
11
National Park Service. Medicine Lodge Treaty
12
Columbia River Inter-Tribal Fish Commission. Treaty with the Nez Perces, 1855
13
National Park Service. Treaty of 1863
14
National Park Service. Nez Perce War of 1877
15
National Archives. Fort Laramie Treaty of 1868
16
Justia. United States v. Sioux Nation of Indians, 448 U.S. 371
17
PBS NewsHour. The Supreme Court Ruling on the Black Hills
18
Lakota Times. How People Get the 1868 Treaty Wrong
19
National Park Service. The Dawes Act
20
Native Governance Center. Allotment Legacies Guide
21
National Archives. Dawes Act
22
Supreme Court Historical Society. Lone Wolf v. Hitchcock
23
Justia. Lone Wolf v. Hitchcock, 187 U.S. 553
24
National Archives. Termination Policy
25
Milwaukee Public Museum. The Effects of Termination
26
Federal Bar Association. Indian Law
27
NOAA Fisheries. Sovereign Relations on the West Coast
28
Justia. Winters v. United States, 207 U.S. 564
29
American Bar Association. Supreme Court Tribal Water Rights
30
American Bar Association. Jurisdictional Landscape in Indian Country After McGirt and Castro-Huerta
31
GovInfo. Congressional Hearing on Oklahoma v. Castro-Huerta
32
Harvard Law School Environmental & Energy Law Program. Dakota Access Pipeline Tracker
33
North Dakota Monitor. Standing Rock Appeals Dismissal of Latest Dakota Access Pipeline Lawsuit
34
Bureau of Indian Affairs. What Is the Federal Indian Trust Responsibility
35
Native American Rights Fund. About Tribal Nations, the United States, and Treaties
36
Harvard Law Review. What the Future Holds: The Changing Landscape of Federal Indian Policy
37
U.S. Congress. H.R. 165 – Wounded Knee Massacre Memorial and Sacred Site Act
38
Native American Rights Fund. Current Federal Legislation
39
Friends Committee on National Legislation. January 2026 Native American Legislative Update
40
National Indian Child Welfare Association. Child and Family Policy Updates