🌎Intro to Native American Studies Unit 4 – Tribal Sovereignty: Treaties & Federal Policy

Historical Context

• Native American tribes were sovereign nations prior to European colonization exercised control over their territories, resources, and internal affairs
• European powers (Spain, France, England) established treaties with tribes during the colonial era recognized tribal sovereignty and negotiated land transactions, trade agreements, and military alliances
• Following the American Revolution, the U.S. government continued treaty-making with tribes under the Articles of Confederation and later the Constitution
  • Article I, Section 8 of the U.S. Constitution grants Congress the power to regulate commerce with foreign nations, states, and Indian tribes
• Early U.S. Supreme Court decisions (Johnson v. M'Intosh, Cherokee Nation v. Georgia, Worcester v. Georgia) established foundational principles of federal Indian law affirmed tribal sovereignty, the federal-tribal relationship, and the supremacy of federal law over state law in Indian affairs
• Despite recognition of tribal sovereignty, the U.S. government pursued policies of removal, assimilation, and termination that undermined tribal autonomy and self-determination throughout the 19th and 20th centuries

Key Concepts in Tribal Sovereignty

• Inherent sovereignty: The idea that tribes possess inherent powers of self-government that predate European contact and the formation of the United States not granted by external governments
• Government-to-government relationship: The unique political and legal relationship between the federal government and tribal nations based on treaties, laws, and court decisions
• Trust responsibility: The federal government's obligation to protect tribal lands, resources, and the well-being of Native American people arising from treaties and the guardian-ward relationship
• Plenary power: The U.S. Congress's broad authority over Indian affairs, including the ability to modify or extinguish tribal rights and powers
  • This power is not absolute and is subject to constitutional limitations and the federal trust responsibility
• Reserved rights: The concept that tribes retain all rights and powers not expressly ceded in treaties or extinguished by Congress includes rights to self-government, cultural practices, and natural resources
• Tribal citizenship: The right of tribes to determine their own membership criteria and exercise jurisdiction over their citizens distinct from U.S. citizenship

Major Treaties and Their Impact

• Treaty of Hopewell (1785-1786): Early treaties between the U.S. and Cherokee, Choctaw, and Chickasaw nations established peace, friendship, and boundaries
• Treaty of Greenville (1795): Following the Northwest Indian War, this treaty ceded large portions of Native American land in the Ohio Valley to the U.S. and established reservations
• Treaty of Fort Laramie (1851): Recognized tribal territories and promised U.S. protection for Plains tribes (Sioux, Cheyenne, Arapaho) in exchange for allowing passage along the Oregon Trail
• Treaty of Fort Laramie (1868): Established the Great Sioux Reservation, including the Black Hills, and promised to close the Bozeman Trail forts
  • The discovery of gold in the Black Hills led to the U.S. government violating the treaty and seizing the land
• Treaties of Medicine Creek (1854) and Point Elliott (1855): Puget Sound tribes ceded land to the U.S. while retaining hunting and fishing rights these rights were later affirmed in the Boldt Decision (1974)
• Hundreds of treaties were signed between the U.S. and Native American tribes, often under duress or with misunderstandings about the terms many were violated by the U.S. government in the pursuit of westward expansion and resource exploitation

Federal Indian Policy Eras

• Trade and Intercourse Acts (1790-1834): Regulated commerce with Native American tribes and prohibited the sale of Native American land to individuals or states without federal approval
• Removal Era (1830s-1850s): Characterized by the forced relocation of Native American tribes from their ancestral lands to designated Indian Territory west of the Mississippi River (Trail of Tears)
• Reservation Era (1850s-1880s): Focused on confining Native American tribes to designated reservations to open up land for white settlement and assimilation efforts
• Allotment and Assimilation Era (1880s-1920s): Dawes Act (1887) divided tribal land into individual allotments to promote private property ownership and assimilation surplus land was sold to non-Native settlers
  • This policy resulted in significant land loss for tribes and the fragmentation of reservations
• Indian Reorganization Act (1934): Ended allotment, encouraged tribal self-government, and established procedures for tribes to organize and adopt constitutions
• Termination Era (1940s-1960s): Sought to end the federal-tribal relationship, terminate federal recognition of tribes, and relocate Native Americans to urban areas
• Self-Determination Era (1960s-present): Emphasized tribal sovereignty, self-governance, and the right of tribes to manage their own affairs through policies like the Indian Self-Determination and Education Assistance Act (1975)

Contemporary Tribal Governance

• Tribal governments exercise inherent sovereignty through the development and enforcement of tribal constitutions, laws, and policies
• Tribal councils or business committees serve as the legislative and decision-making bodies for many tribes elected by tribal citizens
• Tribal courts interpret and apply tribal laws, customs, and traditions in civil and criminal matters involving tribal members and activities on tribal land
  • Tribal jurisdiction is limited by federal law in certain areas (major crimes, non-Native defendants)
• Tribal executive functions are carried out by elected or appointed tribal leaders (chairperson, president, chief) and administrative departments
• Tribes engage in intergovernmental relations with federal, state, and local governments to address issues of mutual concern (environmental protection, public safety, economic development)
• Tribal governments provide essential services to their communities, including healthcare, education, housing, and infrastructure development often in partnership with federal agencies
• Many tribes have developed economic enterprises (casinos, natural resource extraction, tourism) to generate revenue for tribal government operations and services

Legal Challenges and Court Cases

• Ex parte Crow Dog (1883): Affirmed tribal jurisdiction over crimes committed by Native Americans against each other on tribal land led to the Major Crimes Act (1885)
• United States v. Kagama (1886): Upheld the constitutionality of the Major Crimes Act and affirmed Congress's plenary power over Indian affairs
• Lone Wolf v. Hitchcock (1903): Allowed Congress to unilaterally abrogate treaties with Native American tribes and allot reservation land without tribal consent
• Williams v. Lee (1959): Recognized tribal court jurisdiction over civil cases involving non-Natives on tribal land
• McClanahan v. Arizona State Tax Commission (1973): Prohibited states from imposing income taxes on Native Americans living and working on their tribe's reservation
• Oliphant v. Suquamish Indian Tribe (1978): Limited tribal criminal jurisdiction over non-Native defendants on tribal land
• California v. Cabazon Band of Mission Indians (1987): Affirmed tribal sovereignty in the context of gaming and paved the way for the Indian Gaming Regulatory Act (1988)
• McGirt v. Oklahoma (2020): Ruled that much of eastern Oklahoma remains Native American land for jurisdictional purposes, as Congress never explicitly disestablished the Muscogee (Creek) Nation reservation

Current Issues and Debates

• Land rights and natural resource management: Tribes assert their rights to manage and protect their lands, water, and natural resources (Dakota Access Pipeline protests, Bears Ears National Monument)
• Economic development and gaming: Tribal gaming has provided significant revenue for many tribes, but also raises questions about regulation, taxation, and the distribution of benefits
• Criminal jurisdiction and public safety: The complex patchwork of tribal, state, and federal jurisdiction on reservations has led to challenges in law enforcement and the prosecution of crimes (Missing and Murdered Indigenous Women)
• Health disparities and access to care: Native American communities face disproportionate rates of health problems (diabetes, substance abuse, mental health issues) and barriers to accessing quality healthcare
• Education and language preservation: Tribes strive to improve educational outcomes for Native American students and revitalize indigenous languages and cultural practices
• Environmental justice and climate change: Native American communities are disproportionately affected by environmental degradation, pollution, and the impacts of climate change on traditional lifeways
• Consultation and free, prior, and informed consent: Tribes advocate for meaningful consultation and consent in decisions that affect their lands, resources, and communities (energy development, infrastructure projects)

Looking Ahead: Future of Tribal Sovereignty

• Continued assertion and exercise of tribal sovereignty through self-governance, economic development, and cultural revitalization
• Strengthening of the government-to-government relationship between tribes and the federal government through improved consultation, collaboration, and respect for tribal decision-making
• Expansion of tribal jurisdiction and authority in areas such as criminal justice, taxation, and environmental regulation
  • Potential legislative fixes to address issues raised by court decisions limiting tribal sovereignty (Oliphant, Carcieri v. Salazar)
• Increased focus on nation-building and the development of strong, sustainable tribal institutions and economies
• Advocacy for the protection of sacred sites, cultural resources, and traditional knowledge from appropriation and exploitation
• Ongoing efforts to address historical traumas, social inequities, and the legacy of colonialism through healing, reconciliation, and the promotion of Native American rights and well-being
• Greater recognition and support for the unique political status and inherent sovereignty of Native American tribes by the U.S. government, international community, and general public
• Collaboration among tribes, intertribal organizations, and allies to advance common goals and address shared challenges facing Native American communities