How Native Nations’ sovereign status was taken and how it could be restored

Native Nations made approximately 368 treaties with the U.S. government between 1777 and 1868. Native Nations negotiated those treaties as sovereign, independent entities.

The United States would later unilaterally declare Native Nations “domestic dependent nations.”

When and how did that switch happen? Were the U.S. actions legally valid?

An article published this year by the NYU Law Review, Revitalizing Tribal Sovereignty in Treatymaking, says no. It provides a new analysis on how Native Nations could challenge the paternalistic system the United States has imposed on them — and have their sovereign status recognized.

Eliminating Native sovereignty

This post examines three key events where the United States terminated Native Nations’ sovereign status, stating with the 1831 U.S. Supreme Court decision in Cherokee Nation v. Georgia.

In 1830, the Cherokee Nation appealed to the U.S. Supreme Court to bar the state of Georgia from taking its lands, and to void state laws that go “directly to annihilate the Cherokees as a political society.”

U.S. Attorney General William Wirt argued on behalf of the Cherokee Nation, saying it was a foreign nation and not subject to Georgia’s state laws. Georgia’s attempts to legislate over the Cherokee Nation violated the Constitution, treaties, and other laws.

In 1831, the Supreme Court declined to hear the case. It argued the Cherokee Nation wasn’t the same as a foreign nation. Chief Justice John C. Marshall went as far as to say Tribes were “domestic dependent nations,” with a federal relationship akin to “a ward to his guardian.”

First U.S. Supreme Court Chief Justice John C. Marshall. Painting by Henry Inman. Photo by Virginia Memory

The United States would keep making treaties with Native Nations for decades following the court’s ruling.

Here’s the court’s apparent logic: At the time of the treaty signing, Native Nations were sovereign. (It would make no sense to make a treaty with one’s guardian.) As soon as the treaty was signed — poof — Native Nations become wards of the state.

Doubtful that was explained at treaty signings.

Second, a rider attached to an 1871 Congressional appropriations bill “prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties,” the law review article said.

Under the Constitution, treaty making was the prerogative of the president, acting with the advice and consent of the Senate. The House of Representatives had no say in creating treaties and was only responsible for allocating funds to carry out their provisions. By the 1870s, however, the House had new members representing new constituencies in western states, many of whom lobbied for the removal of Indigenous people. The House as a whole had also come to resent its minor role in Indigenous affairs, going so far as to refuse to fund new treaties. As the House debated the Appropriations Act of 1871, representatives hitched a rider denying Native sovereignty to what was otherwise a routine allocations bill.

Colorado Encyclopedia

A third significant event eliminating tribal sovereignty was the Supreme Court ruling in United States v. Kagama.

First, some background. In August, 1881 a Native American man named Crow Dog murdered another Native American man on the Great Sioux Reservation.

“The Sioux tribal government convicted Crow Dog and, applying traditional Sioux law, ordered him to pay restitution to the victim’s family. The government of the Dakota Territory also charged Crow Dog with murder, and, after being found guilty, Crow Dog was sentenced to death.”

Crow Dog appealed, arguing the federal court had no jurisdiction. (An 1834 act “specifically excluded crimes committed by one Native American on another from federal jurisdiction.”)

Lakota chief Crow Dog. Image by Theodore M. Schleier. Source: Tennessee State Library and Archives

In 1883, the U.S. Supreme Court ruled 9-0 that the federal government didn’t have jurisdiction over the Crow Dog case.

Congress reacted to this limitation on its powers by passing the Major Crimes Act of 1885. It listed seven major crimes, including murder, where federal courts would have jurisdiction in major crime cases involving Native people on reservations.

The Major Crimes Act was soon challenged as unconstitutional. The federal government prosecuted a Native man named Kagama for the murder of another Native man on the Hoopa Valley reservation in California. Like Crow Dog, Kagama challenged the court’s jurisdiction.

In 1886, the U.S. Supreme Court ruled unanimously against Kagama.

The court ruled that tribal governments “owe all their powers to the statutes of the United States” and Congress could withdraw, modify, or repeal Tribal powers at any time.

The Kagama ruling described Native peoples as “weak and helpless” and, like Chief Justice Marshall, “wards of the state.”

New case law opens new arguments

Two recent Supreme Court cases, Zivotofsky v. Kerry (2015) and McGirt v. Oklahoma (2020) strengthen the tribal sovereignty argument, the law review article said.

First, some background on McGirt v. Oklahoma.

“In the 1800s, the United States forced the Creek Nation ‘to leave their ancestral lands in Georgia and Alabama,'” the law review article said. “Traveling the Trail of Tears, the Creek settled on a reservation beyond the western bank of the Mississippi in what is now Oklahoma. By treaty, the United
States guaranteed that these lands ‘would be secure forever.’ The United States also guaranteed the Creek Nation the right to self-government.”

Fast forward to the 21st Century. Oklahoma state court convicted Jimcy McGirt, a member of the Muscogee (Creek) Nation, of child sex crimes. The crime took place “within the historical Creek Nation boundaries.”

It was a bold argument, as the historic Creek Nation covers the eastern half of the state of Oklahoma, including Tulsa.

McGirt argued Oklahoma didn’t have jurisdiction, the federal government did, as the crime occurred on the historic Creek Nation.

In a 5-4 ruling, the Supreme Court said the historic Creek Nation “remains ‘Indian country’ under the Major Crimes Act.”

The Court’s majority opinion said Oklahoma’s unspoken argument seemed to be that there are advantages to “ignoring the written law,” and letting the State proceed as it always has.

Following the state of Oklahoma’s logic “would be the rule of the strong, not the rule of law,” the court said.

So states that ignore or violate Tribal sovereignty are ignoring the rule of law. It seems straight forward enough, but as a practical matter states seem to ignore Tribal sovereignty and treaty rights until they are sued. (Think Enbridge Line 3.)

The broader impacts of the McGirt decision are still being sorted out.

In Zivotofsky, the Court ruled that “the President possesses the exclusive power to decide whether a tribe may be recognized to engage in treatymaking,” the law review article said.

This supports the argument that the 1871 Appropriations rider was unconstitutional, the law review article said. Congress made treaty decisions, a power reserved to the president.

“In our view, the President can and should unilaterally reengage in federal-Indian treatymaking, revitalizing treatymaking and reanimating the sovereignty model of federal-Indian relation,” the article said.

Again, full article here: Revitalizing Tribal Sovereignty in Treatymaking.

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