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Treaty Rights & Tribal Sovereignty

Keeping our Word: Indigenous Sovereignty and Treaty Rights

By September 18, 2009No Comments7 min read

The struggle for equality in the United States is most identified with the heroic battles of the Civil Rights Movement. As African Americans fought for equal protection under the law and full participation in society, Americans and people around the world were inspired. Our most noble pursuits have been inspired by the genuine call to equal rights and justice for all: the struggle for women’s equality, the stand against white nationalists and anti-Semites, the battle for full Constitutional rights for people of all sexual orientations, the voices that rose against the persecution of Arabs and Muslims after the attacks of September 11, 2001, the fight for immigrant rights, and many more.



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.

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Chuck Tanner

Author Chuck Tanner

Chuck Tanner is an Advisory Board member and researcher for the Institute for Research and Education on Human Rights. He lives in Washington State where he researches and works to counter white nationalism and the anti-Indian and other far right social movements.

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