Native American Law: Tribal Sovereignty, Treaties

Explore the complexities of Native American law, focusing on tribal sovereignty, treaties, legal principles, historical context, and contemporary issues shaping the relationship between Native American tribes and the U.S. government.

Native American law encompasses a complex and multifaceted area of legal practice that deals with the rights, sovereignty, and treaties of Native American tribes. This guide aims to provide a comprehensive overview of tribal sovereignty and treaties, focusing on the legal principles, historical context, and contemporary issues that shape this field.

Tribal Sovereignty

Tribal sovereignty refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States. This sovereignty is recognized by the U.S. Constitution, treaties, statutes, and judicial decisions. The foundational legal principle is that tribes possess all powers of self-government except those relinquished by treaty or explicitly removed by Congress.

  1. U.S. Constitution: Article I, Section 8, Clause 3, known as the Commerce Clause, grants Congress the power to regulate commerce with Native American tribes. Scope of Commerce Clause Authority and Indian Tribes
  2. Treaties: Historically, treaties between the U.S. government and Native American tribes have been a primary mechanism for recognizing tribal sovereignty. American Indian Treaties | National Archives
  3. Federal Statutes and Case Law: Various federal laws and court decisions have further defined and affirmed tribal sovereignty. US Federal Law - American Indian Law: A Beginner's Guide

Historical Context

Pre-Colonial and Colonial Periods

Before European colonization, Native American tribes were independent, self-governing entities with their own systems of governance, culture, and laws. The arrival of European settlers marked the beginning of a complex relationship characterized by treaties, conflicts, and negotiations.

Treaty Era

From the late 18th century to the mid-19th century, the U.S. government entered into numerous treaties with Native American tribes. These treaties often involved land cessions, promises of protection, and provisions for self-governance. The Treaty of Fort Laramie (1851) and the Treaty of Medicine Lodge (1867) are notable examples.

Assimilation and Allotment Era

The late 19th and early 20th centuries saw a shift in U.S. policy towards assimilation and allotment. The General Allotment Act of 1887 (Dawes Act) aimed to assimilate Native Americans by dividing tribal lands into individual allotments. This policy resulted in significant loss of tribal land and undermined tribal sovereignty.

Indian Reorganization Act of 1934

The Indian Reorganization Act (IRA) of 1934 marked a reversal of the assimilation policy. The IRA aimed to restore tribal self-governance and promote economic development. It encouraged tribes to adopt constitutions and establish self-governing institutions.

Contemporary Tribal Sovereignty

Government-to-Government Relations

Today, the relationship between the U.S. government and Native American tribes is characterized by a government-to-government framework. This relationship is based on mutual respect and recognition of tribal sovereignty. Government-to-Government Relations with Native American Tribal Governments

Trust Responsibility

The federal government has a trust responsibility to protect tribal lands, assets, and resources. This responsibility stems from treaties, statutes, and judicial decisions. The trust responsibility includes obligations to provide health care, education, and other services to Native American tribes. American Indians and Alaska Natives - The Trust Responsibility

Tribal Jurisdiction

Tribal sovereignty includes the authority to exercise jurisdiction over tribal members and territory. This jurisdiction encompasses civil, criminal, and regulatory matters. However, the extent of tribal jurisdiction can be complex and is often subject to federal and state laws.

Worcester v. Georgia (1832)

In Worcester v. Georgia, the U.S. Supreme Court held that the state of Georgia had no authority to impose its laws on Cherokee tribal lands. The decision affirmed the principle of tribal sovereignty and established that only the federal government could regulate relations with Native American tribes.

United States v. Kagama (1886)

In United States v. Kagama, the Supreme Court upheld the constitutionality of the Major Crimes Act, which extended federal jurisdiction over certain crimes committed by Native Americans on tribal lands. The decision recognized the federal government's authority to regulate tribal affairs but also acknowledged the inherent sovereignty of tribes.

Oliphant v. Suquamish Indian Tribe (1978)

In Oliphant v. Suquamish Indian Tribe, the Supreme Court ruled that tribal courts do not have jurisdiction over non-Native Americans. This decision limited the scope of tribal sovereignty and highlighted the complexities of tribal jurisdiction.

Treaties

Treaties between the U.S. government and Native American tribes are legally binding agreements that establish the terms of the relationship between the parties. These treaties often involve land cessions, recognition of tribal sovereignty, and provisions for services and protections.

  1. Treaty Clause of the U.S. Constitution: Article II, Section 2, Clause 2 grants the President the power to make treaties with the advice and consent of the Senate.
  2. Supreme Court Decisions: Various Supreme Court decisions have interpreted and enforced treaty rights. American Indian Treaties | National Archives
  3. Federal Statutes: Congress has enacted laws to implement and protect treaty rights. Treaties - American Indian Law: A Beginner's Guide

Historical Context

Early Treaties

The earliest treaties between the U.S. government and Native American tribes were often negotiated to secure peace and establish alliances. The Treaty of Fort Stanwix (1784) and the Treaty of Greenville (1795) are examples of early treaties that involved land cessions and recognition of tribal sovereignty.

Removal and Relocation

The Indian Removal Act of 1830 authorized the forced relocation of Native American tribes from their ancestral lands to territories west of the Mississippi River. This policy led to the negotiation of numerous treaties that resulted in the cession of vast tracts of land. The Treaty of New Echota (1835), which led to the Trail of Tears, is a notable example.

Reservation Era

During the reservation era, treaties were used to establish reservations where tribes could live and govern themselves. These treaties often included provisions for education, health care, and other services. The Treaty of Medicine Lodge (1867) and the Treaty of Fort Laramie (1868) are examples of treaties that established reservations.

Contemporary Issues

Treaty Rights

Treaty rights remain a critical issue for Native American tribes. These rights often include hunting, fishing, and gathering rights, as well as rights to land and resources. The enforcement and protection of treaty rights can involve complex legal and political challenges.

Many contemporary legal challenges involve the interpretation and enforcement of treaty rights. Tribes often have to litigate to protect their treaty rights from infringement by state and federal governments, as well as private parties.

Best Practices for Protecting Treaty Rights

The Bureau of Indian Affairs (BIA) has developed best practices for identifying and protecting tribal treaty rights. These practices include consultation with tribes, legal research, and collaboration with federal and state agencies. Best Practices for Identifying and Protecting Tribal Treaty Rights

United States v. Winans (1905)

In United States v. Winans, the Supreme Court held that treaty rights to fish at "usual and accustomed places" were reserved rights that could not be abrogated by state law. The decision affirmed the principle that treaties must be interpreted in favor of tribes.

Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979)

In this case, the Supreme Court upheld the treaty rights of Native American tribes in Washington State to a fair share of the fish harvest. The decision emphasized that treaty rights are legally binding and must be honored.

Minnesota v. Mille Lacs Band of Chippewa Indians (1999)

The Supreme Court ruled that the Mille Lacs Band of Chippewa Indians retained their treaty rights to hunt, fish, and gather on ceded lands. The decision reinforced the principle that treaty rights endure unless explicitly abrogated by Congress.

Conclusion

Native American law, particularly in the areas of tribal sovereignty and treaties, is a complex and evolving field. The recognition of tribal sovereignty and the enforcement of treaty rights are fundamental to the relationship between Native American tribes and the U.S. government. Understanding the historical context, legal principles, and contemporary issues is essential for anyone seeking to navigate this area of law.

References

  1. US Federal Law - American Indian Law: A Beginner's Guide
  2. Tribal Sovereignty Ruling | U.S. Department of the Interior
  3. American Indian Treaties | National Archives
  4. American Indians and Alaska Natives - The Trust Responsibility
  5. Treaties - American Indian Law: A Beginner's Guide
  6. Best Practices for Identifying and Protecting Tribal Treaty Rights
  7. Scope of Commerce Clause Authority and Indian Tribes
  8. Government-to-Government Relations with Native American Tribal Governments
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Von Wooding

Von Wooding

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