Native American Studies Unit 4 Review: Tribal Treaties and Federal Relations

Historical Context

• Prior to European colonization, Native American tribes had their own systems of governance, land management, and inter-tribal relations
• European colonizers often viewed Native Americans as "uncivilized" and sought to impose their own cultural, religious, and economic systems
  • This led to conflicts over land, resources, and sovereignty
• Early treaties between Native tribes and European powers (French, British, Dutch) established trade relationships and military alliances
  • Example: Iroquois Confederacy's Covenant Chain treaties with the British
• After American independence, the U.S. government continued to negotiate treaties with Native tribes as sovereign nations
  • Constitution's Commerce Clause gave Congress authority to regulate trade with Indian tribes
• 19th century marked a shift towards more aggressive policies of removal, assimilation, and land acquisition as U.S. expanded westward
  • Example: Indian Removal Act of 1830 led to forced relocation of tribes east of the Mississippi River

Key Treaty Concepts

• Treaties are formal agreements between sovereign nations that establish rights, obligations, and relationships
• In U.S.-Native American context, treaties often focused on land cessions, hunting/fishing rights, and promises of protection and assistance from the federal government
• Doctrine of Discovery: European legal concept that "discovered" lands were subject to the sovereignty of the discovering nation
  • Used to justify colonial claims to Native American lands
• Domestic Dependent Nations: Supreme Court's designation of Native tribes as distinct political entities under U.S. protection (Cherokee Nation v. Georgia, 1831)
• Trust Responsibility: Federal government's obligation to protect Native American lands, resources, and well-being based on treaty promises
• Plenary Power: Congress's broad authority over Native American affairs, including the ability to unilaterally abrogate treaties
• Reserved Rights Doctrine: Principle that Native tribes retain all rights not expressly ceded in treaties (U.S. v. Winans, 1905)

Major Treaties and Agreements

• Treaty of Fort Pitt (1778): First U.S. treaty with a Native tribe (Lenape), established military alliance against the British
• Treaty of Hopewell (1785-86): Series of treaties with southeastern tribes (Cherokee, Choctaw, Chickasaw) that established boundaries and trade relations
• Treaty of Greenville (1795): Ended Northwest Indian War, ceded large portion of Ohio and Indiana to the U.S.
• Treaty of Fort Laramie (1851): Established tribal territories and allowed for the construction of roads and forts in the Great Plains
• Treaty of Medicine Lodge (1867): Assigned reservations to southern Plains tribes (Comanche, Kiowa, Apache) and promised government assistance
• General Allotment Act (Dawes Act) of 1887: Divided reservation lands into individual allotments, aimed at assimilation and opening "surplus" lands to non-Native settlement
  • Led to significant loss of tribal land base
• Indian Reorganization Act (1934): Ended allotment policy, encouraged tribal self-government and economic development

Federal Indian Policy Eras

• Treaty-Making Era (1778-1871): U.S. negotiated treaties with Native tribes as sovereign nations
  • Ended with the Indian Appropriations Act of 1871, which declared that no tribe would be recognized as an independent nation
• Removal Era (1830s-1850s): Federal government sought to remove Native tribes from their ancestral lands and relocate them west of the Mississippi River
  • Example: Trail of Tears, the forced removal of the Cherokee Nation
• Reservation Era (1850s-1880s): Native tribes were confined to designated reservations, often in remote and less desirable areas
  • Goal was to open up more land for non-Native settlement and assimilate Native peoples into American society
• Allotment and Assimilation Era (1880s-1930s): Federal policies aimed at breaking up tribal land holdings and encouraging Native individuals to adopt American culture and values
  • Included forced attendance at boarding schools and suppression of Native languages and cultural practices
• Indian New Deal (1930s-1940s): Shift towards greater support for tribal self-government and economic development under the Indian Reorganization Act
• Termination Era (1950s-1960s): Federal government sought to end its trust responsibilities to Native tribes and terminate their status as recognized tribes
  • Led to loss of federal support and services for many tribes
• Self-Determination Era (1970s-present): Emphasis on tribal sovereignty, self-governance, and cultural revitalization
  • Includes legislation like the Indian Self-Determination and Education Assistance Act of 1975

Tribal Sovereignty and Self-Determination

• Tribal sovereignty refers to the inherent right of Native tribes to govern themselves and manage their internal affairs
  • Predates U.S. Constitution and has been recognized through treaties, court decisions, and legislation
• Tribes have the authority to establish their own governments, laws, and court systems
  • Limited by federal law and Supreme Court decisions (e.g., tribes generally do not have criminal jurisdiction over non-Natives on reservations)
• Self-determination policies aim to support tribal control over education, healthcare, economic development, and other key areas
  • Example: Indian Self-Determination and Education Assistance Act of 1975 allows tribes to contract with federal agencies to administer programs and services
• Tribal governments have increasingly asserted their sovereignty in areas like environmental regulation, taxation, and gaming
  • Example: National Indian Gaming Regulatory Act of 1988 established framework for tribal gaming operations
• Challenges to tribal sovereignty persist, including conflicts with state and local governments and infringement on tribal rights by federal agencies and private entities

Legal Challenges and Court Cases

• Marshall Trilogy: Series of Supreme Court decisions in the 1820s-1830s that established key principles of federal Indian law
  • Johnson v. M'Intosh (1823): Recognized Doctrine of Discovery, giving U.S. title to Native lands
  • Cherokee Nation v. Georgia (1831): Defined tribes as "domestic dependent nations" under U.S. protection
  • Worcester v. Georgia (1832): Affirmed tribal sovereignty and federal authority over Indian affairs
• Ex parte Crow Dog (1883): Ruled that tribes had exclusive jurisdiction over crimes committed by Indians against Indians on reservations
  • Led to the Major Crimes Act of 1885, extending federal jurisdiction over certain crimes
• U.S. v. Winans (1905): Established reserved rights doctrine, affirming that tribes retain all rights not expressly ceded in treaties
• Lone Wolf v. Hitchcock (1903): Affirmed Congress's plenary power over Indian affairs, including the ability to unilaterally abrogate treaties
• Oliphant v. Suquamish Indian Tribe (1978): Ruled that tribes do not have inherent criminal jurisdiction over non-Indians on reservations
• McGirt v. Oklahoma (2020): Affirmed that much of eastern Oklahoma remains Native American reservation land, upholding tribal sovereignty and treaty rights

Contemporary Issues and Impacts

• Persistent socioeconomic disparities between Native American communities and the general U.S. population
  • Higher rates of poverty, unemployment, health problems, and lower educational attainment
• Ongoing struggles to protect tribal lands, resources, and sacred sites from development and environmental threats
  • Example: Dakota Access Pipeline protests at Standing Rock Reservation
• Efforts to revitalize Native languages and cultural practices, which were suppressed under past assimilation policies
  • Example: Esther Martinez Native American Languages Preservation Act of 2006
• Addressing the crisis of missing and murdered Indigenous women and girls (MMIWG)
  • Disproportionately high rates of violence against Native women, often inadequately investigated and prosecuted
• Ensuring adequate funding and resources for tribal programs and services, which are often underfunded compared to similar non-Native programs
• Navigating complex jurisdictional issues between tribal, state, and federal authorities, especially in areas like law enforcement and child welfare
• Continuing to assert and defend tribal sovereignty in the face of ongoing challenges and encroachments by non-Native entities

Looking Ahead: Future of Tribal-Federal Relations

• Strengthening government-to-government relationships between tribes and federal agencies through consultation, collaboration, and respect for tribal sovereignty
• Addressing the trust land status of reservations and the need for land restoration and consolidation
  • Example: Land Buy-Back Program for Tribal Nations, part of the Cobell v. Salazar settlement
• Ensuring that federal laws and policies are developed with input from and consideration of Native American perspectives and needs
  • Example: Requirement for tribal consultation in the 2013 Violence Against Women Reauthorization Act
• Supporting tribal self-determination and self-governance efforts, including through increased funding and flexibility for tribal programs
• Enhancing tribal capacity to address climate change, natural resource management, and other environmental challenges
• Exploring new models of economic development that balance tribal sovereignty, cultural values, and sustainable growth
  • Example: Indigenous-led renewable energy projects
• Continuing to educate non-Native society about the history, diversity, and contemporary realities of Native American tribes and their unique political status
• Working towards greater recognition and fulfillment of treaty obligations and trust responsibilities by the federal government
  • This may involve increased funding, policy changes, and legal action to uphold tribal rights and interests