November is Native American Heritage Month which is a time to acknowledge indigenous people’s significant contributions and celebrate Indigenous cultures, histories, and traditions. However, this month also presents an opportunity to learn about the significant shortcomings committed by the U.S. in its over 400-year relationship with tribal nations – especially regarding treaty rights.
Tribal nations have been sovereign since time immemorial. Sovereignty is a legal word for an ordinary concept – the authority to self-govern. Tribal nations have inherent rights to govern themselves in matters that are internal to their communities, integral to their unique cultures, identities, and institutions, and with respect to their special relationship to their land and their resources. Their political relationship with the U.S. government does not derive from race or ethnicity but their intrinsic nationhood status.
The U.S. constitution defines treaties with the sovereign nations as part of the “supreme law of the land,” with the same legal force as federal statutes. The Supreme Court has explained that treaties should be interpreted liberally in favor of tribal nations, as tribal nations would have understood them, with ambiguous language clarified for their benefit. America signed the first treaty in 1778 with the Delaware Indians after declaring independence from British rule. Between 1778–1871, more than 370 treaties came into law, and only Congress may revoke Indian treaty rights.
Treaties with tribal nations vary widely in their terms and provisions. Treaties commonly included:
- A guarantee of peace;
- A provision on land boundaries, hunting and fishing rights (often including lands outside the reservation boundaries);
- Tribal recognition of U.S. authority & protection; or
- Specific promises of federally provided health care, education, housing, economic development, and agricultural assistance.
From 1823 to 1832, Supreme Court Chief Justice John Marshall authored the Marshall Trilogy – Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. These laid the foundation for federal Indian law and the roots of the federal-tribal trust relationship. It also established the treatment of tribal property and resources. These cases determined that:
- Tribal nations have the right to reside on lands reserved for them, but the United States has ultimate title;
- Tribal nations are “domestic dependent nations”; and
- States cannot impose their policies within Indian territories.
The United States made various political and legal commitments to tribal nations through treaty-making. Unfortunately, tribal nations are no strangers to violations of their treaty rights. Below are several policy-making eras that came to shape where we are today.
Treaty-Making and Removal Period (1778-1887): The United States negotiated over 400 treaties with American Indian tribal nations, though Congress ratified only 375. In 1830, President Andrew Jackson asked Congress to pass a bill providing for the removal of all eastern tribes to west of the Mississippi River, which Congress designated as “Indian Territory.” Congress passed the Indian Removal Act despite protests that the act violated previous treaties and laws recognizing Indian sovereignty.
Allotment and Assimilation Period (1887-1934): With treaties confining tribal nations into smaller tracts of land, poverty and poor health outcomes rose, leading to higher costs to the federal government. The Dawes Act of 1887 then served to promote assimilation and dividing of tribal nations’ communal landholdings into allotments leading to multiple owners, including millions of acres passing out of trust into non-Indian homesteading.
Tribal Reorganization Period (1934-1940s): Realizing the poor impacts of allotment & assimilation, the Indian Reorganization Act shifted policy toward more authority and autonomy to tribal governments and ended the Allotment Period.
Termination and Relocation Period (1950s-1960s): Seeing that the U.S. could save money by ending the federal government’s trust and treaty obligations, federal policy focused on ending reservations, dissolving the recognition of tribal sovereign authority, and again promoting assimilation.
Self-Determination Era (1970s-Present): Due to the termination policies proving detrimental to tribal citizens, federal policy began emphasizing increasing tribal decision-making authorities. Congress restored Tribes’ sovereign status, though most reservations and tribal assets were unrecoverable.
The federal government has never adequately funded treaty provisions. It is, however, the obligation of the federal government to protect tribal self-governance, tribal lands, assets, resources, and treaty rights, in addition to carrying out the directions of federal statutes and court cases. The Supreme Court has defined this trust responsibility as a “moral obligation of the highest responsibility and trust.” Indian treaties have the same status as treaties with foreign nations. Because they are made under the U.S. Constitution and are “the supreme law of the land,” they take precedence over any conflicting state law. These contracts represent an exchange and acknowledgment of certain rights, not a grant of rights already held by tribal governments and peoples.
The United States should prioritize improving its over 400-year relationship between tribal nations. No easy answer exists when more than 574 federally recognized Indian nations exist across the country, each with distinctive colonization histories. Still, they share one common demand of the United States, and that is to honor the treaties.
Native American Heritage Month is an opportunity for each of us to learn about our role in honoring treaties and tribal sovereignty. One place to start is to read U.S. Commission on Civil Rights 2018 report BROKEN PROMISES: Continuing Federal Funding Shortfall for Native Americans and OPI’s Essential Understandings of Regarding Montana Indians.