🏛️Native American Tribal Governments Unit 3 – Treaties and Native American Rights

Historical Context

• Native American tribes were sovereign nations prior to European colonization with their own systems of governance, laws, and traditions
• European colonizers and later the United States government entered into treaties with Native American tribes as a means of establishing political and economic relationships
• Treaties were often used by the U.S. government to acquire land from Native American tribes in exchange for promises of protection, goods, and services
• Many treaties were signed under duress or without full understanding by Native American leaders of the long-term consequences (Treaty of Fort Laramie, 1851)
• The U.S. government often failed to uphold its treaty obligations leading to broken promises and further loss of Native American land and resources
• The Indian Removal Act of 1830 authorized the forced relocation of Native American tribes from their ancestral lands to designated Indian Territory west of the Mississippi River (Trail of Tears)
• The General Allotment Act of 1887 (Dawes Act) aimed to break up tribal land holdings into individual allotments to promote assimilation and private property ownership

Key Treaties and Agreements

• The Treaty of Fort Laramie (1851) was signed between the U.S. government and several Plains Indian tribes to establish peace and allow for the construction of roads and military posts in tribal territories
• The Treaty of Medicine Lodge (1867) was signed with the Kiowa, Comanche, and Apache tribes requiring them to relocate to reservations in present-day Oklahoma
• The Treaty of Fort Laramie (1868) was signed with the Sioux Nation guaranteeing them exclusive rights to the Black Hills and hunting grounds in exchange for peace
• The Agreement of 1877 (Black Hills Act) took away Sioux land in the Black Hills after gold was discovered, violating the 1868 Treaty of Fort Laramie
• The Stevens Treaties (1854-1855) were signed with tribes in Washington Territory establishing reservations and guaranteeing fishing and hunting rights
  • These treaties have been the subject of ongoing legal disputes over tribal fishing rights and resource management
• The Treaty of New Echota (1835) was signed with a faction of Cherokee leaders, leading to the forced removal of the Cherokee Nation on the Trail of Tears

Legal Principles and Doctrines

• The Doctrine of Discovery was a legal principle that granted European nations sovereignty over non-Christian lands they "discovered" and occupied
  • This doctrine was used to justify the acquisition of Native American lands by European colonizers and later the United States
• The Marshall Trilogy refers to three Supreme Court cases in the early 1800s that established important legal principles in federal Indian law
  • Johnson v. M'Intosh (1823) recognized the Doctrine of Discovery and established that Native American tribes had a right of occupancy but not full ownership of their lands
  • Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" with a relationship to the U.S. government resembling that of a ward to its guardian
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and held that states had no authority over tribal lands within their borders
• The Canons of Construction are principles used by courts to interpret treaties and statutes in favor of Native American tribes when ambiguities exist
  • These principles recognize the unequal bargaining power between tribes and the U.S. government during treaty negotiations
• The Trust Doctrine is the legal obligation of the federal government to protect tribal lands, resources, and the best interests of Native American tribes based on the guardian-ward relationship established in the Marshall Trilogy

Tribal Sovereignty

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves as independent political entities
• Tribes have the authority to establish their own governments, laws, and court systems within their reservations
• Tribal sovereignty is not granted by the U.S. government but is an inherent right that predates European colonization
• The U.S. Constitution recognizes tribal sovereignty through the Commerce Clause, which gives Congress the power to regulate commerce with Native American tribes
• Tribal sovereignty is limited by the plenary power of Congress, which can pass laws that affect Native American tribes and their lands
• Tribes have sovereign immunity, which protects them from lawsuits unless Congress has expressly waived that immunity or the tribe has consented to be sued
• The exercise of tribal sovereignty has been affirmed by the Supreme Court in cases like United States v. Wheeler (1978), which held that tribes have the inherent power to prosecute their own members for crimes committed on tribal lands

Federal Indian Law

• Federal Indian law is the body of law that governs the relationship between the U.S. government and Native American tribes
• The U.S. Constitution gives Congress plenary power over Native American affairs, which has been used to pass legislation affecting tribes and their lands
• The Indian Reorganization Act of 1934 (IRA) ended the allotment of tribal lands and encouraged tribes to adopt constitutions and establish tribal governments
  • The IRA also authorized the Secretary of the Interior to take land into trust for tribes, which helps protect tribal land from state and local jurisdiction
• The Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA) allows tribes to contract with the federal government to administer programs and services that were previously provided by federal agencies
• The Indian Child Welfare Act of 1978 (ICWA) gives tribes jurisdiction over child custody proceedings involving Native American children and sets standards for the placement of Native American children in foster and adoptive homes
• The Indian Gaming Regulatory Act of 1988 (IGRA) establishes the framework for the regulation of gaming on tribal lands and requires tribes to enter into compacts with states to conduct certain types of gaming
• The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) requires federal agencies and institutions that receive federal funding to return Native American cultural items and human remains to their respective tribes

Contemporary Issues and Challenges

• Native American tribes continue to face challenges in exercising their sovereignty and protecting their lands, resources, and cultural heritage
• Many tribes struggle with poverty, unemployment, and lack of access to healthcare, education, and other basic services on reservations
• The underfunding of federal programs and services for Native American tribes, as required by treaty obligations, remains an ongoing issue
• Tribes often face conflicts with state and local governments over jurisdiction, taxation, and regulation on tribal lands
• The development of natural resources on tribal lands, such as oil, gas, and minerals, has led to environmental concerns and disputes over revenue sharing
• The protection of sacred sites and cultural resources from development and desecration is a significant challenge for many tribes (Dakota Access Pipeline, Bears Ears National Monument)
• Addressing the crisis of missing and murdered Indigenous women (MMIW) has become a priority for many tribes and advocacy organizations
• Ensuring the survival and revitalization of Native American languages and cultural traditions is an ongoing effort for many tribal communities

Case Studies and Landmark Decisions

• Ex Parte Crow Dog (1883) affirmed tribal jurisdiction over crimes committed by Native Americans against other Native Americans on tribal lands
• United States v. Winans (1905) upheld the fishing rights of the Yakama Nation under the 1855 Treaty with the Yakama
• Lone Wolf v. Hitchcock (1903) affirmed the plenary power of Congress over Native American affairs and upheld the allotment of tribal lands without tribal consent
• United States v. Sioux Nation of Indians (1980) awarded compensation to the Sioux Nation for the taking of the Black Hills in violation of the 1868 Treaty of Fort Laramie
• Oliphant v. Suquamish Indian Tribe (1978) held that tribes do not have criminal jurisdiction over non-Indians who commit crimes on tribal lands
• Montana v. United States (1981) established the "Montana test" for determining when tribes can regulate the activities of non-Indians on non-Indian fee lands within reservations
• McGirt v. Oklahoma (2020) affirmed that the Muscogee (Creek) Nation's reservation in Oklahoma had never been disestablished, upholding tribal jurisdiction over major crimes committed by Native Americans on the reservation

Impact on Native American Communities

• Treaties and federal Indian law have had a profound impact on the lives of Native American individuals and communities
• The loss of ancestral lands and forced relocation to reservations disrupted traditional ways of life and led to cultural, social, and economic devastation for many tribes
• The allotment of tribal lands and assimilation policies of the late 19th and early 20th centuries contributed to the erosion of tribal sovereignty and cultural identity
• The underfunding of federal programs and services, as required by treaty obligations, has resulted in persistent disparities in health, education, and economic outcomes for Native American communities compared to the general U.S. population
• The exercise of tribal sovereignty and the development of tribal governments and institutions have allowed some tribes to assert greater control over their affairs and build more resilient communities
• The revitalization of Native American languages, cultural traditions, and spiritual practices has been a source of strength and pride for many tribal communities
• Landmark court decisions and legislation have affirmed tribal rights and sovereignty, but the implementation and enforcement of these rights remain ongoing challenges
• The impact of historical trauma, including the legacy of boarding schools, forced adoptions, and other assimilation policies, continues to affect Native American individuals and communities today