Treaties

The treaty relationship is the foundation or bedrock principle of U. S. law on Indian rights. A treaty actually is a contract between two sovereign nations. Treaties made between the United States and individual tribes had the same force of law as treaties with foreign nations. This concept is recognized in the U. S. Constitution in the Treaty Clause, which affirms prior and future Indian treaties as “the supreme law of the land.”

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all 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. (Article 6, 2nd clause)

The Commerce Clause in the Constitution gives Congress, not the states, the authority to deal with Indian tribes.

The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. (Article 1, Section 8, 3rd clause)

As tribal peoples increasingly became a minority in the United States, these principles were called into question. The Supreme Court had to consider whether and to what extent to honor old promises. In 1831-32 the Court affirmed both the “Treaty Clause” and the “Commerce Clause.”  Moreover, “Tribes have inherent rights that precede the constitution and guarantee the right to cultural separation and political autonomy.”  And, states have no authority to extend jurisdiction over Indian tribes. Taking into consideration the weakened position of tribes, the Court introduced the Trust Doctrine: tribes are “domestic dependent nations,” not the exact equivalent to foreign states, and the United States is obligated to protect tribes and their resources as a “guardian” protects a “ward.” The modern court has on balance chosen to enforce the substance of these promises.

This section explains how treaties were negotiated and what rights and obligations each party incurred, how treaties are the basis for the resolution of legal cases involving tribal rights today, and why scholars study treaties to understand their significance not only for Indian tribes but also for American culture and history generally.

  • Share/Save/Bookmark