Native American Treaty Rights: Understanding Legal Agreements Between Tribes and Government
Native American treaty rights are not relics of a distant past but living, foundational legal principles that continue to shape the relationship between sovereign tribal nations and the United States government. Far from being mere historical curiosities, these agreements, often forged under duress and routinely violated, represent the "supreme Law of the Land" as enshrined in the U.S. Constitution. Understanding them is crucial for comprehending contemporary issues ranging from land and water disputes to tribal sovereignty and economic development.
The historical tapestry of treaties between European powers, and later the United States, and Indigenous nations spans centuries, predating the very formation of the American republic. These were not unilateral decrees but diplomatic instruments negotiated between distinct, sovereign political entities. From the perspective of tribal nations, treaties were agreements to share land, establish peace, and define boundaries, often in exchange for protecting their remaining territories, resources, and cultural practices. For the nascent United States, treaties were instruments of territorial expansion, securing vast tracts of land for settlement and resource extraction, often with promises of protection, services, and self-governance for the tribes.
A critical legal principle underpinning these agreements is the Reserved Rights Doctrine. This doctrine posits that tribes retain all rights that they have not explicitly ceded to the United States. As articulated by the Supreme Court in United States v. Winans (1905), "Treaties are not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted." This means that tribal nations did not gain rights from treaties; rather, they retained inherent rights they possessed since time immemorial, ceding only specific aspects of their sovereignty or land. This is a cornerstone for understanding tribal claims to hunting, fishing, water, and land use that often clash with state or private interests.
The U.S. Constitution, in Article VI, Clause 2, declares treaties the "supreme Law of the Land," placing them on par with federal statutes. This constitutional weight underscores the enduring legal obligation of the U.S. government. Early Supreme Court decisions, notably Chief Justice John Marshall’s rulings in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), affirmed the sovereignty of tribal nations and established the federal government’s unique Trust Responsibility. Marshall described tribes as "domestic dependent nations," a phrase that, while reflecting the paternalistic views of the era, also recognized their distinct political status and the federal government’s obligation to protect their lands, resources, and self-governance. This trust responsibility, though frequently honored in the breach, remains a legal and moral bedrock of federal-tribal relations, implying a duty to act in the best interests of tribal nations.
Treaty provisions often covered a wide array of rights, each with profound implications today. Land and resource rights are paramount. While tribes ceded millions of acres, they reserved rights to hunt, fish, and gather on ceded territories, crucial for subsistence, culture, and economic well-being. The landmark Boldt Decision (United States v. Washington, 1974) affirmed the treaty fishing rights of tribes in the Pacific Northwest, entitling them to half the harvestable salmon catch. This decision, initially met with fierce opposition, underscored the enduring power of treaty provisions and reshaped fisheries management in the region. Similarly, water rights, often reserved implicitly or explicitly, are vital in arid regions, with cases like Winters v. United States (1908) establishing the principle of "reserved water rights" for tribal lands, necessary to fulfill the purposes of their reservations.
Beyond resources, treaties frequently addressed self-governance and sovereignty. Tribes retained the inherent right to govern their internal affairs, establish their own laws, and operate their own judicial systems. This inherent sovereignty, recognized rather than granted by the U.S., forms the basis for tribal governments today to manage police, courts, education, and health services on their lands. However, this sovereignty is not absolute. The Supreme Court’s ruling in Oliphant v. Suquamish Indian Tribe (1978) held that tribal courts generally lack criminal jurisdiction over non-Indians, a significant curtailment of tribal governmental power that continues to be debated.
Perhaps no recent case better illustrates the enduring power and contemporary relevance of these ancient agreements than McGirt v. Oklahoma (2020). In a stunning 5-4 decision, the Supreme Court affirmed that a vast swath of Eastern Oklahoma, including most of Tulsa, remains a Native American reservation for the purposes of federal criminal law, based on an 1866 treaty with the Muscogee (Creek) Nation. The Court, specifically Justice Neil Gorsuch, emphasized the simple, yet profound, legal truth: "We hold the government to its word." This ruling dramatically altered jurisdictional landscapes, reaffirming that Congress, not the courts or states, has the sole authority to disestablish a reservation, and absent explicit action, treaty boundaries remain intact. McGirt sent ripples across Indian Country, empowering tribes and reminding states of the often-forgotten legal obligations inherent in treaties.
Yet, the history of treaty relations is also one of systematic betrayal. From the forced removal of tribes under the Indian Removal Act to the devastating land loss through the Dawes Act (General Allotment Act) of 1887, which sought to dismantle tribal land bases and assimilate Native peoples, the U.S. government frequently prioritized its expansionist goals over its treaty obligations. The mid-20th century Termination Policy further sought to dissolve tribal governments and assimilate Native Americans, proving to be a catastrophic failure that tribes still work to overcome.
Today, these historical and ongoing breaches manifest in various forms. Disputes over resource extraction, such as the Dakota Access Pipeline (DAPL) at Standing Rock, highlight how modern infrastructure projects can infringe upon treaty-protected lands and waters, threatening sacred sites and environmental health. The persistent underfunding of federal programs promised in treaties—for healthcare, education, and infrastructure—constitutes a chronic breach of the trust responsibility, leaving many tribal communities with dire needs.
Despite these challenges, tribal nations are actively asserting their treaty rights and inherent sovereignty, engaging in nation-building, economic development, and cultural revitalization. Treaty rights provide a legal foundation for tribal enterprises, from casinos to tourism to natural resource management, creating economic self-sufficiency and reducing dependence on federal funding. The assertion of these rights is not just about legal battles; it is about cultural survival, self-determination, and justice.
In conclusion, Native American treaty rights are complex, deeply rooted, and profoundly relevant. They are not mere historical documents but living legal agreements that demand respect and enforcement. From the explicit promises of land and resources to the implicit recognition of inherent sovereignty and the enduring trust responsibility, these treaties continue to shape the legal, political, and social landscape of the United States. Understanding them is not just an academic exercise but a critical step toward acknowledging the true history of this nation and fostering a relationship between the U.S. government and tribal nations based on honor, justice, and mutual respect, as befits agreements between sovereign peoples. The struggle to uphold these sacred agreements continues, a testament to the resilience of Native American nations and a constant reminder of the United States’ unfinished business with its founding promises.
