The 19th century was a time of dispossession and dislocation for many Native nations.1 Yet not all tribal groups lost or were banished from their homelands. Though wrenched from their aboriginal territories, in 1868 the Navajo managed to return to and regain a significant portion of their tribal estate in the Four Corners area of the Southwest, and they continued to expand their nation’s boundaries in the late 19th and 20th centuries.
The Navajo paid dearly for their territories. Beginning in late 1863, the United States uprooted about 10,500 Navajo men, women and children from their homes and force-marched them 450 miles to Bosque Redondo, an internment camp on the Pecos River in southeastern New Mexico. After four years of suffering, starvation, disease and death, the exiles convinced U.S. officials to allow them to return to their “beloved country” in 1868.2 In the Treaty they signed that year, the Navajo accepted a 3.4-million acre reservation in what is now northeastern Arizona and northwestern New Mexico. Although it included only about one-fourth of the Navajo’s traditional territories,3 the reservation provided a haven in which to regroup and repopulate – and from which to reclaim additional homelands. Today, the Navajo Nation is the largest Indian reservation in the United States, encompassing about 25,000 square miles across Arizona, New Mexico and Utah.4
On June 1, 1868 Navajo (Diné) leaders signed a final treaty with the United States.5 At the Bosque Redondo reservation to which they had been exiled four years earlier, Diné leaders successfully persuaded General William Tecumseh Sherman to allow their people to return to their homeland. Of their return the Diné leader Manuelito said, “The days and nights were long before it came time for us to go to our homes…. When we saw the top of the mountain from Albuquerque we wondered if it was our mountain, and we felt like talking to the ground, we loved it so, and some of the old men and women cried with joy when they reached their homes.”6 Naal Tsoos Saní, or the Old Paper, as the Navajo have named the 1868 treaty, marks a shift in Navajo history, the point at which the Navajo people lost their freedom and autonomy and came under American colonial rule. Since the treaty, Navajo history has been one of ongoing efforts to reclaim their former independence, sovereignty and self-determination.
The treaty evokes memories of Navajo resistance to colonial powers and a strong sense of ongoing injustices wrought by the United States. On the one hand, the People (an English translation of Diné) retain a deep sense of the deprivation that their ancestors suffered; on the other, they remember their ancestors’ successful struggle to regain a land base, sustain cultural traditions and keep alive the Diné language. Naal Tsoos Saní also represents the birth of the modern Navajo Nation, for in coming to an agreement with Navajo leaders, the United States acknowledged the Diné as sovereign. Finally, as the Navajo people face the challenges of life in the 21st century, they often have conversations about what it means to move beyond a relationship with the United States in which their nation is cast as a “domestic dependent.”7 In these visions of a Navajo Nation, the Diné emphasize the importance of their way of life, founded in the concept of sa’ah nagháí bik’eh hózhóón, which can be translated as “the path to beauty and old age.”
Sovereignty and self-determination for the Diné mean their concrete rights to self government, territorial integrity and cultural autonomy under international law.8 Between 1706 and 1819, Spain and Mexico signed treaties with Navajo leaders, thereby recognizing Navajo sovereignty.9 Laying claims to territory long before any Spaniard ever set foot in the Southwest, the peoples who would become the Diné emerged from the lower worlds in a region still known as Dinétah, or “among the People.” Dinétah is the place where earth people and Holy People interacted; their relationships form the foundation of practices and teachings that underlie Navajo life today. The Holy People set the Diné homeland’s boundaries with soil brought from the lower world, placing the soil as mountains in each of the four directions. Diné Bikéyah refers to the lands that lie within the four sacred mountains, which are named Sis Naajiní, or Blanca Peak, in the east; Tsoodził, or Mount Taylor, in the south; Dook’oosłííd, or the San Francisco Peaks, in the west; and Dibé Nitsaa, or Mount Hesperus, in the north. The soil brought from the world below also formed two other mountains: Dził Na’oodiłii, or Huerfano Mountain – east of the center, and Ch’ool’í’í, or Gobernador Knob – the center. These last two mountains are within Dinétah and central to events that occurred when the progenitors of the Diné emerged into the world we inhabit today, which is known as the Glittering World. Traditional Navajo philosophy names these six mountains as the leaders of the Diné. It is in this place that the philosophy sa’ah nagháí bik’eh hózhóón was established through actions and words. Navajo leaders and citizens declare that traditional teachings form the foundation of the sovereignty that the United States recognized in the Treaty of 1868.
The Treaty of 1868
Treaties signed between the United States and tribal leaders on behalf of their people in the latter half of the 19th century are often seen as the beginning of Native dependency on the United States and an erosion of tribal autonomy and freedom. American negotiators clearly sought the conversion of Native Peoples and their cultures to something resembling Euro-American social, political and economic systems, and, for the Navajo people, the Treaty they signed in 1868 with the Americans was no different.10 The Navajo Nation, like many other Native Nations, was established as a “domestic dependent” of the United States. As Native scholars Wallace Coffey and Rebecca Tsosie write, “In a world where tribal political sovereignty is dependent upon federal acknowledgement, Indian nations will always be vulnerable to restrictions on their sovereignty, and perhaps even to the total annihilation of their sovereignty.”11
In affixing their X-marks to paper, Diné leaders both affirmed Diné sovereignty and acknowledged the authority of the United States to limit tribal sovereignty. They did what they had to do in an impossible situation to allow their people to have a future.12 This future, according to Native scholar Scott Lyons, meant “adopting new ways of living, thinking and being that do not necessarily emanate from a traditional cultural source (or, for that matter, ‘time immemorial’), and sometimes it means appropriating the new and changing it to feel like the old.”13 Further, the document remains an important symbol of Navajo sovereignty and all the possibilities for living once again under Diné philosophy.
Thus, the Navajo Treaty of 1868 resonates as a document that has historical, legal and cultural meaning. For the Navajo people, the Treaty terms that allowed them to return to their ancestral territories were paramount, even though their domain was substantially less than what it had formerly been. In addition, as political scientist David Wilkins points out, treaties “have an ongoing symbolic and substantive significance and are still the most important device for creating and maintaining the unique political relationship between tribes and the United States.”14 From the Navajo perspective the Treaty reflects the foundation of the U.S.– Navajo relationship. The Navajo people trust that the United States will fulfill its legal and moral obligations under the Treaty.15 Even though the Treaty anticipated the eventual assimilation of the Navajo, it also created the physical space and opportunity for the Navajo to define and exercise sovereignty and self-government. Navajo leaders and community activists have used this opportunity to develop a cultural dimension of Navajo sovereignty, one that links the Navajo Nation to “its territory, its environment, its neighbors and entails the people’s right to think and act freely and to meet their own needs as they see fit.”16
Under the Treaty, the Navajo agreed to cease war against the United States and allow structures and buildings where federal authorities could oversee their obligations to the Navajo. The United States agreed to provide annuities for 10 years. Federal agents thought that 10 years of annuities would be enough to move the nation to self-sufficiency. Other provisions allowed for the allotment of the land for farming (a provision that was largely not implemented), and the Navajo agreed not to oppose the construction of railroads through their country. Perhaps one provision that remains contentious is the stipulation that Navajo children would be afforded an American education. Indeed, Manuelito sent his own sons to the Carlisle Indian Industrial School in Pennsylvania because he believed education could be a tool for protecting sovereignty. At Fort Sumner, N.M., Manuelito had said, “Life does not end. It goes on.”17 In 1874, together with his wife, son and other Navajo leaders, he led a delegation to Washington, D.C., to affirm Navajo land rights.18
The Treaty confirms the Navajo Nation’s rights and powers to regulate its own affairs without undue interference. These rights and powers include the ability to make laws, execute and apply them, and impose and collect taxes.19 In particular, in the 1959 case Williams v. Lee the U.S. Supreme Court affirmed the Navajo Nation’s right to regulate non-Indian companies that do business on Navajo land. The case involved a non-Indian trader bringing suit against a Navajo couple and confiscating their livestock to settle their debt to him. In its ruling, the Supreme Court held that, without congressional authorization, state courts have no jurisdiction in a civil case brought by a non-Indian doing business on a reservation against tribal citizens who live there, and that the case should have been filed in the tribal court.20 In the 1985 case Kerr McGee Corp. v. Navajo Tribe of Indians, the Supreme Court once again affirmed Navajo tribal sovereignty when it ruled that the Secretary of the Interior’s approval was not required for the Navajo Nation to pass laws imposing taxes on companies conducting business on Navajo land.21
The cultural dimension of sovereignty is just as important as its legal and historical aspects. On numerous occasions Navajo leaders and their allies have commemorated the meaning of the 1868 Treaty. In 1968 the Navajo people celebrated the 100th anniversary of their return from the Bosque Redondo. In 2005, after years of planning, the Navajo and their allies dedicated the Bosque Redondo Memorial at the site of the old reservation in Fort Sumner. Gregory Scott Smith, a manager of the memorial, acknowledged its importance: “It will honor the memory of thousands of Navajo and Mescalero Apache people who suffered and died as a result of the forced relocation and internment. Moreover, it will celebrate the official birth of a sovereign nation born of the tragedy of Bosque Redondo.”22 These commemorations reflect Navajo leaders’ and their citizens’ sense of accomplishment for having retained cultural values and controlled their government in the decades since the Treaty was made.
The meaning of the 1868 Treaty remains integral to Navajo efforts to determine what sovereignty and self-determination mean to them. As Navajo scholar Lloyd Lee notes, a number of Indigenous intellectuals express the desire of Native Nations to return to health and prosperity based upon Native methods of governance.23 The Navajo people must decide if and how they will create a nation based upon their own Diné laws, and they must decide what kind of relationship they wish to have with the United States. Lee writes, “One future goal is reclaiming true Navajo nationhood. Prior to colonization, Navajo society had true self-sufficiency. The People could direct their way of life without outside intrusion.” In Navajo formulations of sovereignty and self-determination, revaluing the Navajo philosophy of sa’ah nagháí bik’eh hózhóón is key.24 Certainly, the Navajo Nation’s establishment of a Navajo Nation Human Rights Commission shows the desire to pursue a vision of belonging to the international community of nations on an equal basis with other nations.25
Every year Navajo citizens celebrate Navajo Treaty Day. Integral to the celebrations are the memories and stories about leaders such as Manuelito, his wife, Juanita (her public Navajo name was Asdzáá Tł’ógi), Barboncito and others who claimed the rights of their people to live within the four sacred mountains and in a manner of their own choosing. They sacrificed much to ensure the future of their nation and people. That sacrifice has made it possible for the Navajo to maintain and revitalize their culture, assert their sovereignty and continually negotiate their relationship with the United States.
1 Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Belknap Press, 2007), 228-90.
2 Peter Iverson, Diné: A History of the Navajos (Albuquerque: University of New Mexico Press, 2002), 59; John L. Kessell, “General Sherman and the Navajo Treaty of 1868: A Basic and Expedient Misunderstanding,” Western Historical Quarterly 12, no. 3 (July 1981): 263.
3 Peter Iverson, The Navajos (New York: Chelsea House, 1990), 46.
4 Navajo Area Office, Indian Health Service website, www.ihs.gov/navajo/index.cfm?module=nao_navajo_ nation; U.S. Department of Interior, Bureau of Indian Affairs, www.bia.gov/FAQs/index.htm.
5 The names Diné and Navajo are used interchangeably throughout this essay, because both refer to who we are.
6 William A. Keleher, Turmoil in New Mexico, 1846–1868 (Santa Fe: Rydal Press, 1952), 277, cited in Crawford R. Buell, “The Navajo ‘Long Walk’: Recollections by Navajos” in The Changing Ways of Southwestern Indians: A Historic Perspective, ed. Albert Schroeder (Glorieta, N.M.: Rio Grande Press, 1971), 183.
7 Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 17.
8 Joanne Barker, “For Whom Sovereignty Matters,” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination (Lincoln: University of Nebraska Press, 2005), 18.
9 David E. Wilkins, The Navajo Political Experience (Tsaile, Ariz.: Diné College Press, 1999), 20–23, 210, 211.
10 John L. Kessell, “General Sherman and the Navajo Treaty of 1868: A Basic and Expedient Misunderstanding,” Western Historical Quarterly 12, no. 3 (1981).
111 Wallace Coffey and Rebecca Tsosie, “Rethinking the Tribal Sovereignty Doctrine: Tribal Sovereignty and the Collective Future of Indian Nations,” Stanford Law and Policy Review 12, no. 2 (2001): 194.
12 Joanne Barker, Native Acts: Law, Recognition, and Cultural Authenticity (Durham, N.C.: Duke University Press, 2011). Barker argues that as Native Peoples we should appreciate the deplorable conditions under which our leaders agreed to treaty terms with the United States.
13 Scott Richard Lyons, X-Marks: Native Signatures of Assent (Minneapolis: University of Minnesota Press, 2010), 32, 33.
14 Wilkins, Navajo Political Experience, 22.
15 Ibid., 23-25.
16 Ibid., 16, 17.
17 Quoted in Jennifer Nez Denetdale, Reclaiming Diné History: The Legacies of Navajo Chief Manuelito and Juanita (Tucson: University of Arizona Press, 2007), 82-84.
19 Wilkins, Navajo Political Experience.
20 Bethany R. Berger, “Williams v. Lee and the Debate Over Indian Equality,” Michigan Law Review 109 (June 2011): 1463–528.
22 Gregory Scott Smith, “A Concern for the Future,” El Palacio 108 (Winter 2003): 19. See also Jennifer Nez Denetdale, The Long Walk: The Forced Navajo Exile (New York: Chelsea House, 2007), 112–13.
23 Lloyd L. Lee, “Reclaiming Indigenous Intellectual, Political, and Geographical Space: A Path for Navajo Nationhood,” American Indian Quarterly 32, no. 1 (Winter 2008): 96-110.
24 Ibid., 107.
25 See the Navajo Nation Human Rights Commission’s website at www.nnhrc.navajo-nsn.gov. The commission is charged with several responsibilities, including the need to have a presence at the United Nations.
This article is excerpted from “Naal Tsoos Saní: The Navajo Treaty of 1868, Nation Building and Self- Determination,” pages 116-132, in Nation to Nation: Treaties Between the United States and American Indian Nations (NMAI and Smithsonian Books, 2014).