Battle of Little Bighorn: 09 – The Treaty of 1868

"The Custer Fight" by Charles Marion Russell. Lithograph. Shows the Battle of Little Bighorn, from the Indian side.

Fort Laramie

In April of 1868 the members of the peace commission again returned to Fort Laramie. In their possession was a new treaty. This treaty was significant in the fact that at no other time in the history of the United States had the country fought a war, then negotiated a peace on the enemies’ terms. Red Cloud had gotten his way. The forts along the Bozeman Trail were to be abandoned.

On April 29, Iron Shell, a Brule chief, signed the treaty on behalf of his people. His ‘touching the pen’ was accompanied with his words “I will always sign any treaty you ask me to do, but you have always made away with them—broken them.”

Iron Shell was not the only Indian who realized the truth of those words. Since Red Cloud had not made a showing at the treaty signing, the commission sent an agent north to the Powder River country to tell him the forts were to be abandoned and inviting him to come and sign the treaty. Red Cloud did not come in but sent a message:

Red Cloud

When we see the soldiers move away and the forts abandoned, then I will come down and talk.

The Treaty of 1868, provided for more than just abandoning the forts. In Article 1 it stated that if bad white men committed any wrong against an Indian or his property, upon proof made to the Indian agent against the white man and forwarded to the Commissioner of Indian Affairs at Washington City, steps will be taken to arrest and punish the offender. This probably sounded good when explained to the Indians but it is hoped that if the situation arose that all parties involved were not long-since dead and buried by the time any action was taken.

A similar ruling was installed in the treaty covering the event of an Indian doing wrong against a white, except the stipulations were a bit amended. In case of an Indian doing wrong, there was no specification for the evidence to be forwarded to authorities in Washington before a trial and punishment could be enacted.

Among other buildings to be constructed on this new reservation a schoolhouse was to be built “as soon as a sufficient number of children can be induced by the agent to attend school.” One can not help but wonder as to what the method of inducement was to convince these children to attend school without first building the school.

The Treaty of 1868 also provided for any Indian wishing to homestead to receive title to a certain amount of land “as long as he continues his residence and improvements, [on the land] and no longer.” The land could not be “mineral land, nor reserved by the United States for special purposes other than Indian occupation, and who shall have made improvements thereon of the value of two hundred dollars or more, and continuously occupied the same as a homestead for the term of three years.”

This sounds great until you consider that if gold, or other desirable minerals, are discovered on an Indian’s land, by treaty he is going to lose his land. If the government decides that a certain parcel of land should be used for another purpose, again the Indian is going to lose. And finally, the chance of an Indian being able to make two hundred dollars in improvements on his land was just about impossible considering that most of what was needed to make improvements had to come from the government via the agent. In most instances the Indians never received near what annuities had been promised.

Article Eleven of The Treaty of 1868 got right to the heart of the matter when it stipulated that “the tribes who are parties to this agreement” would relinquish their right to occupy permanently the territory outside their reservation, but they could hunt in the unceded area beyond the reservation bounds. In other words, they had to call the reservation home.

There was one small obstacle though. The bands that did not sign this treaty, those considered ‘hostile’ such as Sitting Bull’s people and Crazy Horse’s followers, did not consider themselves bound by this treaty. And legally, they weren’t bound by it. They did not give up their right to their land. This also held true for discontinuing opposition to the building of the railroad across the plains.

This treaty contained numerous conditions and rights but paramount among them were other articles that would have a lasting effect and numerous repercussions.

Article Twelve stated that “No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three-fourths of all the adult male Indians, occupying or interested in the same. This means that if the government decided they wanted to take a portion of the promised reservation away from the Indians, they couldn’t, legally, unless an agreement was signed by three-fourths of the adult male Indians that lived on the land or held an interest in it. The key words and terms here are ‘three-fourths, adult males, held an interest in’. These brief words, put down by white hands and signed to by both Indian and whites, would come back to haunt both peoples.

Another complaint the Sioux had about this time were the new forts that were being built along the Bozeman Trail.