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.
