The Unique Status of Tribes in the American System of Government

“We the people’ has never meant ‘all the people.’” spoke the presidential candidate and Navajo Nation member Mark Charles.

When it comes to improving the over four hundred year relationship between Indigenous peoples and the United States this is no easy task. Due to how diverse Indian Country and its culture is. There are more than five point two million American Indian and Alaska Native people who live in America and five hundred and seventy three federally recognized Indian nations across the country. Each of these Indian nations has their own distinctive histories of colonization and encounters with the invaders. Then there are state-recognized nations, unrecognized nations, and Indigenous communities living in the diaspora as well. When asked what needs to change more often than not one version of the answer always comes up about what the United States needs to do and that is to honor the treaties.

Article Six of the United States Constitution holds that treaties “are the supreme law of the land.” Treaties between Indian tribes and the United States confirm each nation’s rights and privileges. In most of these treaties, the tribes ceded title to vast amounts of land to the United States in exchange for protection, services, and in some cases cash payments, but reserved certain lands (reservations) and rights for themselves and their future generations.

Indian treaties have the same force now as on the day they were signed. Like the Constitution and Bill of Rights, treaties do not expire with time. The trust relationship between Indian tribes and the United States government is well established in law. The reserved rights of the tribes have been litigated many times, even going before the Supreme Court on several occasions beginning in 1905. A treaty is a contract, a binding and legal agreement, between two or more sovereign nations. By signing treaties with Indian tribes, the United States acknowledged tribal sovereign status. When the architects of the American government created the Constitution, they explicitly recognized that treaties are the supreme law of the land, along with the Constitution itself.

Throughout history the United States government has signed three hundred and seventy treaties with various Indigenous nations from 1778 to 1871. While the language in the treaties is diverse, there were are often common features of the pacts. Treaties were signed across significantly different periods of history and with incredibly different views of what Indigenous nations were. This is why it is important to hear the voices of Native Americans and listen to what they are asking for. So what promises did the United States make in the treaties?

In return for the vast Indian holdings and resources, the United States made certain promises of protection for Indians from attacks upon their lands (this protection included legal assistance), Health care, education, money, sovereignty, and religious freedom. Also included was confirmation and protection of certain rights such as self-government, fishing, and hunting rights, and jurisdiction over their own lands It is important to remember that these promises were made in honor and they were, and still are, legally binding upon the U.S. by the 6th Article of the U.S. Constitution.

Tribes have a unique status in the American system of government. They are neither foreign nations nor exactly like states. Tribes are distinct political communities, defined in law as “domestic, dependent nations.” In its 1831 Cherokee Nation v. Georgia decision, the Supreme Court described the obligation of the United States to tribes as that of a guardian to his wards. Subsequent court decisions have made it clear that the agencies of the federal government are to be held to the most stringent “fiduciary” (trust) standards. With respect to salmon, it cannot be said that federal agencies have always met their trust responsibilities.