The Treaty of Box Elder
By Colin G. Calloway
The thirtieth of July 2013 marks the 150th anniversary of the Treaty of Box Elder between the United States and the Northwestern Shoshones. At first glance it’s not much of a treaty, just five short articles. Unlike the treaty that a month before defrauded the Nez Perces of 90% of their land, or the Treaty of Fort Laramie with the Sioux in 1868, which the United States broke to steal the Black Hills, the Box Elder treaty gets little attention. Most historians who have written about treaties, myself included, do not even mention it. But like all treaties, it had its own story and mattered immensely to the Indian people involved. Like many treaties its terms were still being debated, and its repercussions felt, generations later.
The Shoshones had assisted Lewis and Clark in 1805 and their friendship with the United States continued through the era of the fur trade. But increasing traffic along the Oregon and California trails and the influx of Mormon emigrants into Utah Territory in the 1850s destroyed game, deprived the Northwestern Shoshones of land, and disrupted their seasonal subsistence. Hungry Shoshones resorted to stealing, violence escalated, and in January 1863 General Patrick E. Connor and a force of 700 volunteers from California—where exterminating Indians had become routine business—massacred more than 200, and perhaps as many as 400, Shoshone people at Bear River in Idaho.
In the wake of the massacre, Governor James Doty of Utah Territory made peace treaties with the Shoshones. The Treaty of Fort Bridger with Chief Washakie and the Eastern Shoshone on 2 July 1863 stipulated that emigrant roads would be made safe and that the Shoshones agreed to let the government establish posts, telegraph, overland stage routes, and railroad rights of way through their territory. At Box Elder (present-day Brigham City) on 30 July, Chief Pocatello and ten bands of Northwestern Shoshones agreed to the Fort Bridger treaty and their tribal boundaries were briefly defined (“on the west by Raft River and on the east by the Porteneuf Mountains”). The final article of the treaty declared: “Nothing herein contained shall be construed or taken to admit any other or greater title or interest in the lands embraced within the territories described in said treaty in said tribes or bands of Indians than existed in them upon the acquisition of said territories from Mexico by the laws thereof.” In October Doty made treaties with the Western Shoshones at Ruby Valley, with the Gosiutes, and with the mixed bands of Shoshones and Bannocks. He then delineated Shoshone territory on a map.
The Treaty of Box Elder provided provisions and goods for immediate relief, “the said bands having been reduced by the war to a state of utter destitution,” and promised an annuity of $5,000 to provide clothing and rations. But the United States failed to honor the commitment and the Northwestern Shoshones were steadily edged off their lands.
In the 1920s, with the assistance of three white attorneys (one of whom, Charles J. Kappler, compiled the collection of federal Indian treaties still used by scholars as a basic reference), the Northwestern Shoshones brought a law suit against the United States government, claiming $15 million in damages for the unlawful taking of some 15 million acres of lands they held by aboriginal title, which they contended was recognized in the Box Elder treaty. The case began in the Court of Claims and made its way to the Supreme Court (Northwestern Shoshone v. United States, 324 U.S. 335). There it generated a much longer document than the brief treaty that gave rise to it.
“Asked to go back over three quarters of a century to spell out the meaning of a most ambiguous writing made in 1863,” the Court addressed federal Indian policy, indigenous land rights, and the history of dispossession. Since Johnson v. McIntosh in 1823, the Court explained, the United States had invoked the so-called “doctrine of discovery” to extinguish Indian land title “without any admitted legal responsibility in the sovereign [i.e. the U. S.] to compensate the Indian for his loss.” So the question was not whether the Northwestern Shoshones had rights of aboriginal occupancy to their territory (aboriginal title was not compensable), but whether the Box Elder treaty recognized their title to the land (treaty title was compensable).
In a 5-4 split decision, the Court ruled that Box Elder was a treaty of friendship only and did not constitute recognition by the federal government of any right, title, or interest in the territorial claims of the tribe. Since any rights the Shoshones had to the lands did not grow out of the treaty, no recovery was possible.
Justice Hugo Black (later famous for his admonition that the United States uphold Indian treaties because “great nations, like great men, should keep their word”) presented a frank assessment of the history of dispossession of Indian peoples, who were no match for the more aggressive and vicious whites. The whites were educated and shrewd; the Indians at the treaty were not literate, had no concept of individual land title, and no sense of property. “Here we are asked to attribute legal meanings to subscribers of a written instrument who had no written language of their own,” Black said. “Acquisitiveness, which develops a law of real property, is a accomplishment only of the ‘civilized.’”
Dissenting justices stressed the moral obligations inherent in treaties and argued that the very act of asking permission to cross Indians’ land implied recognition of their title to that land. Justice Douglas reminded the Court of the canon of construction (established in Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L. Ed. 49) that treaties should be construed as understood by the Indians. “When that standard is not observed, what the Indians did not lose to the railroads and to the land companies they lose in the fine web of legal niceties.” The United States had not taken the Northwestern Shoshones’ land by force or purchase but instead obtained rights in those lands “for a meager consideration.” As a result, the Indians had been reduced to destitution. Under the circumstances, Douglas concluded, “to attempt to deny petitioners’ title is unworthy of our country. The faith of this nation having been pledged in the treaties, the honor of the nation demands, and the jurisdictional act requires, that these long unsettled grievances be settled in this court in simple justice to a downtrodden people.”
They were not. However, just a year later Congress established the Indian Claims Commission, and the Shoshones pressed their claims for compensation there. The claims of the various bands became consolidated and in 1968, the Commission entered a final judgment in the amount of $15,700,000, of which $1,375,000 was awarded to the Northwestern Band of Shoshones (minus deductions for attorneys’ fees and other expenses). In 1972, the final amount was distributed on a per-capita basis to 221 tribal members. In 1987, the Northwestern Shoshones won federal recognition as an Indian tribe.
Box Elder was a small treaty with a big story. Blow the dust off virtually any of the almost four hundred Indian treaties made by the United States, and you find a case study in federal-Indian relations and colonialism. Look beyond the formal language and the listed terms, and you find human stories of tragedy and endurance. Follow some of them to the Supreme Court and you find the judges who represent the conscience of the most powerful nation on earth confronting the often shameful record of its dealings with indigenous peoples and struggling to extend—or deny—a measure of justice to their descendants.
Colin G. Calloway is Professor of Native American Studies and John Kimball Jr. Professor of History at Dartmouth College. He has most recently published Pen and Ink Witchcraft: Treaties and Treaty Making in American Indian History with Oxford in May 2013. His other books include One Vast Winter Count: The American West before Lewis and Clark, for which he won the Merle Curti Award and the Ray Allen Billington Prize, The Shawnees and the War for America, The Scratch of a Pen: 1763 and the Transformation of North America, and New Worlds for All. He recently won the 2011 American Indian History Lifetime Achievement Award.