Keeping our Word: Indigenous Sovereignty and Treaty Rights

Alongside these movements for equal rights under U.S. law, the indigenous peoples of the continent have waged a 500 year struggle for equality between nations. While civil rights activists have worked for equal treatment under our laws and in our institutions and civil society, the indigenous struggle for self-determination has sought a distinct goal: to secure the inherent rights of the continent’s original inhabitants to maintain their land and resource base, their cultures and their political sovereignty.

Two concepts are important in understanding indigenous self-determination: tribal sovereignty and treaty rights. By understanding these ideas, and taking action together, Indians and non-Indians can build communities in which all people are respected and their human rights upheld.

Tribal Sovereignty, a Right of Nations

The concept of "sovereignty" is not of native origin. Rulers of ancient states claimed ultimate authority over their territories. In Europe the concept extends back to the Roman Empire, the papal claim to universal power in medieval times, and the "divine right" of monarchs. The idea of "popular sovereignty" spurred the impulse toward democracy that eventually pushed aside many crumbling monarchies.

Eons before European contact, the indigenous peoples of the Americas routinely defined and enforced territorial boundaries. These boundaries often included overlapping areas in which two or more tribes shared resources and were understood by tribal members as relationships between both land and peoples.

However, the concept of sovereignty is now commonly used to describe tribal rights and can help inform respectful relations between non-indigenous and indigenous peoples. In this respect, sovereignty refers to a collective body or government holding the ultimate political authority in a geographic area. The "sovereign" is empowered to make collective decisions concerning group membership and economic practices; the choice of institutions and external relationships; and socio-cultural and other matters. Because this concept has its origins in the history of states, it also has limitations when applied to tribal nations. While it correctly conveys the political authority of tribes, it understates the importance of understanding tribal sovereignty as an inherent right of indigenous communities to self-determination – even when tribal institutions and practices look different than traditional American conceptions of government.

Anti-Indian activists often claim that tribal sovereignty is an invention of the U.S. government, granted to tribes through legislation, executive order or court decree.

Nothing could be further from the truth.

No act of the U.S. government ever gave, or justly took way, the right of indigenous peoples to govern their lands and resources and the populations living in their territories. Tribes are, in fact, nations – self-identified groups sharing cultural traditions and history in a common territory where they seek to maintain collective self-determination. It is this history of living in their homelands and governing the life of the nation that created tribal sovereignty.

While it did not create these rights, the U.S. government has long recognized inherent tribal sovereignty. Supreme Court Chief Justice John Marshall expressed this in 1832 when he wrote that "Indian nations had always been considered as distinct, independent political communities, retaining from their original natural rights, as the undisputed possessors of the soil, from time immemorial." Marshall continued that Indian tribes "rank among those powers who are capable of making treaties." The "words ‘treaty’ and ‘nation’," he wrote, have been "applied…to Indians, as we have applied them to other nations of the earth."[1] In Marshall’s words, tribes are nations, just like England and the United States.

While nationhood and sovereignty are facts of indigenous political existence, and despite Marshall’s high-sounding words, the U.S. government has never fully respected tribal sovereignty – an unfortunate legacy of its colonial origins. A cornerstone of federal Indian law remains the so-called Discovery Doctrine, an 11th century papal "theory" by which Christian states justified extending their reach into the lands of "heathens" and "infidels."[2] This doctrine was written into U.S. law in 1823 when John Marshall wrote:

The United States…have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country…They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest…" (emphasis added)[3]

Congress claims a "plenary power" over Indian nations that it has used to terminate tribes, violate treaties and expropriate tribal lands. Under this assumed "power," Congress began seizing jurisdiction over "major crimes" on reservations in 1885 and, in the 1950s, terminated more than 100 tribes and imposed some states’ laws on Indian Country.

Alongside the Marshall Court’s recognition of tribal political status, and a ban on extending state law into Indian Country, Marshall termed tribes "domestic dependent nations" whose relationship with the United States "resembles that of a ward to his guardian." [4] The designation of tribes as "dependent" has since been used by the Supreme Court to strip tribal governments of criminal jurisdiction over non-Indians and civil jurisdiction over non-Indians on non-Indian owned property on reservations.[5] The Supreme Court continues to use the 1887 Allotment Act – a law that opened tribal lands to white settlement – to justify extending state jurisdiction over Indian lands.[6]

This legacy of colonial law and practice has placed serious obstacles in the path of tribal self-determination. It undermines tribal efforts to protect tribal members from violence by non-Indians, defend Indian lands from damage by profit-seeking corporations and develop healthy economies. Environmental racism persists as tribal peoples and lands face threats from ongoing and past mining operations; destruction of habitat for species important to tribal sustenance and culture; nuclear testing and storage; and threats to tribal water rights. Tribes continue to fight for the return of the remains of their ancestors and preserve important religious and cultural sites from destruction.

Despite such injustices, tribes continue to exercise and fight for political sovereignty. As a result of tribal sovereignty tribes work to manage and protect their natural resources and lands; develop their economies; defend their cultures and spiritual practices; hunt, fish and gather traditional foods and medicines; and promote the preservation of tribal languages, among other things.

U.S. citizens also benefit from tribal sovereignty when jobs are created by tribal enterprises and governments or when the power inherent in tribal sovereignty is used to protect the environment. By exercising tribal sovereignty, tribes have improved fisheries management in Washington State through co-management with state agencies and engage in numerous habitat restoration projects with local governments and non-Indian community members. Tribes exercising political sovereignty have been a driving force in efforts to save collapsing salmon populations in the Pacific Northwest.

Keeping Our Word: Treaty Rights and Tribal Sovereignty

Treaty rights are inherent legal and moral rights held by indigenous nations. A treaty is a legal contract between sovereign nations. European colonizers used treaties to legitimize the transfer of land from tribal peoples. Treaties were also means of achieving peaceful relations and creating boundaries. Tribal leaders often saw treaties as bringing about multi-cultural unity and relations of support and alliance.

Under the U.S. Constitution, the president can sign treaties with the advice and consent of the U.S. Senate. Once approved by the Senate, Article 6 Section 2 of the Constitution states that "[A]ll Treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

By signing treaties with tribes, the U.S. government recognized their existence as sovereign nations. This was stated clearly in 1979 when the Supreme Court explained that "A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations." [7]

Anti-Indian activists and politicians often describe treaties as giving rights to Indian tribes. Likewise, they claim that treaty rights are "special rights" and that Indians are "supercitizens" as a result of treaties.

Such ideas are simply wrong.

In reality, treaties reserved rights long held by tribes. In exchange for land and other commitments tribes secured recognition of their status and a federal commitment to encroach no further on the rights made explicit and implied in treaties. The idea of treaty rights as reserved rights was recognized by the Supreme Court in 1905 in U.S. v. Winans:

"[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted …And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees." [8]

That is, treaties gave nothing to tribes, only to the U.S. government and its citizens. By entering into treaties the United States obtained the land and resource base that have allowed it to become the wealthiest society on earth.

It is important to recognize the unequal context in which treaty-making occurred. The era of treaty-making– from the colonial period to 1871 – coincided with aggressive westward expansion by Americans, forced Indian removal and repeated wars of aggression by the United States against indigenous peoples. While not all treaties were signed under threat of forced removal and warfare, many were. Treaties were negotiated in English and limited inter-tribal languages, a fact used to the advantage of U.S. treaty negotiators.[9] Treaties were sometimes altered by the Senate without tribal approval and the United States often used treaties to "divide and conquer" tribes.[10] White settlers also repeatedly rushed into Indian Country, with the support of the U.S. military, in express violation of treaties – some of the continent’s first "illegal aliens."

The unequal relationship between tribes and the U.S. government during treaty-making is recognized by the Supreme Court. As a result of this inequality and the federal "trust" obligation to act in the interests of tribes, the Court has developed "canons of construction" used to interpret treaty cases. These canons hold that treaties should be interpreted as they would have been understood by tribes; that ambiguities in treaty language be interpreted liberally in support of tribes; and that treaties must be liberally interpreted in favor of tribes. While these rules have produced favorable rulings for tribes, courts have also ignored them in order to rule against tribes or limit tribal rights.

While the United States has legal and moral obligations to uphold treaty rights, treaty violations by federal and state governments and U.S. citizens have been frequent. In part, these violations stem from the fact that a legacy of colonialism continues to influence U.S. relations with Indian tribes.[11] In Lone Wolf v. Hitchcock (1903) the Supreme Court described a congressional plenary power over tribes that can be used to violate treaties:

"Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government…The power exists to abrogate the provisions of an Indian treaty."[12]

The Court ruled that Congress can abrogate agreements with tribes even when doing so is a result of fraud and misrepresentation and takes place without tribal consent.

Based on Lone Wolf and cases like it, the Supreme Court has expanded the "legal" means used to violate treaties. While earlier cases required "explicit statutory language" to rule that a treaty had been abrogated, in U.S. v Dion the Court ruled that Congressional abrogation can be inferred if there is evidence that Congress "considered the conflict between its intended action…and an Indian treaty," and then chose to resolve the "conflict by abrogating the treaty."[13] While treaty violations are often considered wrongs committed in the distant past, the U.S. government has created both congressional and judicial mechanisms for continuing to violate treaties with indigenous nations.

Not surprisingly, treaties continue to be violated by federal and state governments and U.S. citizens. Treaties can be abrogated outright, as in U.S. v Dion, or violated when federal laws are imposed on tribes and interfere with the exercise of treaty-reserved rights. The latter occurred when the 9th Circuit Appeals Court imposed the Marine Mammal Protection Act (MMPA) on the Makah nation despite the tribe’s treaty-reserved right to hunt whales. When five Makah men, frustrated with the pace of federal permitting under the MMPA, hunted a gray whale in 2007, the federal government compounded this violation by arresting them. The federal government has also allotted lands in express violation of treaty terms (1868 Treaty of Fort Laramie with the Lakota) and assumed control of lands never ceded by treaty (1863 Treaty of Ruby Valley with the Western Shoshone).[14]

Treaties have also been violated when treaty-reserved resources are destroyed by federal or state governments or U.S. citizens. Washington State is presently in violation of six treaties signed in the 1850s with Pacific Northwest tribes. These treaties reserved a "right of taking fish at usual and accustomed grounds…in common with all citizens." In 1974 in U.S. v Washington a federal district court recognized a treaty-reserved right to one-half the fish passing through these "usual and accustomed" tribal fishing grounds.[15] However, the ongoing collapse of Pacific salmon stocks, a result of multiple non-Indian economic practices, violates the treaties by destroying the treaty-reserved fishery. In 2001, twenty tribes sued Washington State over hundreds of state-constructed culverts that cut off hundreds of miles of salmon habitat. A 2006 sub-proceeding of U.S. v Washington upheld a state obligation to "refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest."[16] Because negotiations between tribes and the state failed to resolve the issue, the implementation phase of the case will be heard in federal district court in October.

While this case is rooted in the treaty-reserved rights of Northwest tribes, it is not just a tribal concern. Pacific salmon are perhaps the most iconic as well as economically and culturally important species in the Pacific Northwest. They are also a strong indicator of the damage done to the environment. The tribal struggle for treaty rights is a cornerstone of the struggle to save salmon and rebuild the ecosystems damaged by more than one-hundred-fifty years of shortsighted behavior.

Indigenous Sovereignty in a Global Context

While these pages focus on Indian peoples in what is now the United States, the struggle for indigenous self-determination is global in scope. From Australia to South America, across Africa and Asia to Canada, indigenous peoples face threats from governments and corporations that too often seek to control their lands and resources. Organized anti-indigenous political groups attack tribal rights in Australia, Canada and other countries much as in the United States. And indigenous peoples around the globe have been the first to feel the impact of climate change as tribally-important species migrate out of tribal lands and sea level rise threatens the lands of coastal tribe.[17]

While not described as a right to "sovereignty," the rights of indigenous peoples to political self-determination have been recognized in international law. In September 2007, after more than 20 years of negotiation, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Because they are nations, tribes in the United States and abroad have a right to participate in international forums and raise concerns about their relations with the states that surround their homelands.

The Declaration’s 46 articles recognize indigenous rights of self-determination, self-preservation and non-discrimination. It recognizes the right of indigenous people to self-government and to pursue their own "economic, social and cultural development." Included are rights to practice traditional economic activity, rights to the "lands, territories and resources which they have traditionally" occupied, and the right to have these lands and resources protected. The Declaration recognizes rights to religious practice, to protect and access religious and cultural sites and for the return of tribal remains. It upholds a right to have treaties respected and enforced; the right to not be subjected to genocide, have children forcibly taken or be forcibly assimilated; and the right to non-discrimination in the surrounding state’s educational, political and health institutions.[18]

On September 12, 2007 the United Nations General Assembly voted 143-4 in favor of the Declaration, with 11 countries abstaining.[19] The four countries opposing the declaration were Australia, Canada, New Zealand and the United States. While these are by no means the only states that violate indigenous rights, the former colonies of the British Empire stood alone before the world in publicly opposing them.

Moving forward to justice

More than 500 years after the arrival of Europeans in the Americas, the indigenous peoples of the continent continue to struggle to preserve their lands and ways of life. Tribal nations have won many victories. Through mobilization, litigation and political action indigenous nations in the United States have established recognition of many treaty rights. They have built government-to-government relations with federal, state and local governments. And tribes have organized successfully to defend their communities and the environment. Tribes continue to shape the destinies of their lands and peoples and make important contributions to surrounding non-Indian communities.

However, the struggle for self-determination takes place amidst an over-arching system of a colonial law and political practice that encroach on tribal rights and place obstacles in the way of tribal self-determination. Courts have arguably become more hostile to tribes in the last 30 years, while narrow economic interests too often seek to control tribal natural resources. State governments too frequently oppose tribal rights while tribes remain under attack from anti-Indian organizations like One Nation United and the Citizens Equal Rights Alliance that seek to terminate Indian political sovereignty and treaty-reserved rights.

The constraints on tribal self-determination that permeate the American legal and political system, and recurring attacks on tribes by anti-Indian groups and greedy corporations, point to the need for Indian and non-Indian communities to join together to support tribal rights and defend the common interests we share. By standing up to those who would turn back the clock on tribal rights, and by building strong alliances between communities, we can defend the rights of all people and heal the planet on which we all live.

NOTES:

1. Worcestor v. Georgia, 1832, 31 U.S. 515.

2. For a history of this doctrine and its incorporation into U.S. law, see Williams, Robert A. Jr. 1990. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press.

3. Johnson v. McIntosh, 1823, 21 U.S. 543.

4. Cherokee Nation v. Georgia, 1831, 30 U.S. 1. In Worcester v. Georgia (1832, 31 U.S. 15) the Marshall Court barred the extension of Georgia laws into Cherokee country. 5. In Oliphant v. Suquamish (1978, 435 U.S. 191) tribes were stripped of criminal jurisdiction over non-Indians living on Indian reservations, undermining the ability of tribal law enforcement to protect the safety of reservation residents. A 2008 report by Amnesty International specifically cites Oliphant as a barrier in prosecuting cases of violence against indigenous women on Indian reservations. To redress this injustice, Amnesty International recommends the recognition of concurrent jurisdiction of tribal authorities over all crimes in Indian country (See Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA. Spring 2008). Under Montana v. U.S. (1981,450 U.S. 544) tribes are assumed to lack civil jurisdiction on non-Indian owned fee land except when non-Indians enter contracts with tribes, or non-Indian actions pose a threat to tribal self-governance or tribal welfare. While these exceptions would seem to provide some protection for tribal authority over these lands, courts have rarely upheld tribal civil jurisdiction under these "Montana exceptions." In both cases the "dependent" status of tribes was used to justify these judicial attacks on tribal sovereignty.

6. For example, South Dakota v. Yankton Sioux (1998, 522 U.S. 329). In this ruling, the Supreme Court "ceded" on-reservation non-Indian-owned fee land on which an incinerator plant was located to the state of South Dakota. This was done by arguing that Congress had intended to remove this land from tribal control under an agreement implementing the 1887 Allotment Act. The Allotment Act, which was passed three years before the infamous Wounded Knee massacre, empowered the federal government to "allot" private plots of Indian land to individual Indians and open the remaining "surplus" lands to white settlement. In Yankton, this genocide-era law was used by the Court to undermine tribal environmental protections, as the Yankton Sioux wanted more stringent practices at the incinerator plant than required by the state. The Court continues to cite this law despite the fact that the 1934 Indian Reorganization Act ended the practice of allotment.

7. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 1979, 443 U.S. 658.

8. United States v. Winans, 1905, 198 U.S. 371.

9. See American Friends Service Committee. 1970. Uncommon Controversy: Fishing Rights of the Muckleshoot, Puyallup and Nisqually Indians. Seattle: University of Washington Press. This text describes how Washington territorial governor and railroad advocate Isaac Stevens refused to allow Owen Bush, a staff member who understood tribal languages, to translate for tribes during treaty-making. Rather, Stevens insisted that the treaties be negotiated in the Chinook jargon, an intertribal trade language of some 300 words. Bush wrote that "it was utterly impossible to explain the treaties to them [Indians] in Chinook" (p.23).

10. Wilkinson, Charles F. and John M. Volkman. 1975. Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows or Grass Grows Upon the Earth" – How Long is That? California Law Review 601(63):608-619.

11. Colonialism refers to the process by which states and societies impose their political and "legal" supremacy over politically and culturally distinct societies and engage in the economic exploitation of these "colonies." The U.S. case can specifically be characterized as settler colonialism because it involved the expulsion of indigenous peoples from their lands and the migration of Americans into these lands. A recurring theme in the process of settler colonialism has been the movement of non-Indians into Indian Country, often in violation of treaties, and the subsequent extension of U.S. power to "protect" them. While the extension of U.S. power originally took place through the construction of military outposts in Indian lands, it now takes place through Supreme Court rulings attacking tribal government jurisdiction over non-Indians in Indian Country.

12. Lone Wolf v. Hitchcock, 1903, 187 U.S. 553.

13. United States v Dion, 1986, 476 U.S. 734.

14. For information on violation of the 1863 Treaty of Ruby Valley, see the Western Shoshone webpage at http://www.h-o-m-e.org/Shoshone/; also, see the webpage of the International Indian Treaty Council at http://www.treatycouncil.org/.

15. United States v Washington, Western District Court, 1974,384 F.Supp. 312.

16. U.S. v Washington, United States District Court, Western District of Washington, Case No. CV 9213RSM, Order on Cross-Motions for Summary Judgment (2006).

17. Parker, Alan, Grossman, Zoltan, Whitesell, Edward, Stephenson, Brett, Williams, Terry, Hardison, Preston, Ballew, Laural, Burnham, Brad, Bushnell, Jill and Renee Klosterman. 2006. Climate Change and Pacific Rim Indigenous Nations. Olympia, WA: Northwest Indian Applied Research Institute. This report documents the impact of climate change on indigenous communities and the indigenous response through inter-tribal coalitions and other means. It is an excellent introduction to the issue available at http://academic.evergreen.edu/g/grossmaz/IndigClimate2.pdf.

18. United Nations Declaration on the Rights of Indigenous Peoples. March 2008. United Nations. Available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

19. U.N. General Assembly. "General Assembly Adopts Declaration on Rights of Indigenous Peoples", September 12, 2001. Available at http://www.un.org/News/Press/docs//2007/ga10612.doc.htm. Downloaded July 26, 2009.