The US has signed hundreds of treaties with Indigenous peoples. Here’s what would happen if the government actually honored them.
“‘We the people’ has never meant ‘all the people.’”
These were words of independent presidential candidate and Navajo Nation member Mark Charles as he spoke, to great excitement, at the first presidential forum dedicated to Native American issues in over a decade.
In August, hundreds of Indigenous peoples gathered in Sioux City, Iowa, for the two-day Frank LaMere Presidential Forum. People had traveled from as far as Laguna Pueblo in New Mexico to Wampanoag communities in Massachusetts, eager for a chance to be heard. Aside from Charles, eight Democrats, including frontrunners Bernie Sanders and Elizabeth Warren, were in attendance. The forum marked the rare presidential cycle where candidates are simply acknowledging that Native people exist.
Questions covered a lot of ground: climate change, the 2020 census, the consultation of Indigenous nations on federal decisions, and the Indian Child Welfare Act, a 1978 law meant to reverse the disproportionately high number of Indigenous children removed from their homes by government agencies. Candidates’ plans were discussed as well: Warren’s includes massive increases in spending to help bolster Indian Country; Julián Castro’s notes the need to develop cultural competency in federal relationships, while also giving tribes enhanced self-determination.
But for all these current issues, historical grievances were aired, too. So one has to ask: What long-unfulfilled promises to Indigenous peoples can presidential candidates actually make good on? Where do we go from here?
There is no easy answer as to how to improve the over-400-year relationship between Indigenous peoples and the United States. In part, because Indian Country is so diverse. There are more than 5.2 million American Indian and Alaska Native people who live in America and 573 federally recognized Indian nations across the country, each with distinctive histories of colonization since European contact. Then there are state-recognized nations, unrecognized nations, and Indigenous communities living in the diaspora, too.
While people in a single community will provide a range of perspectives — much less in all 573 federally recognized tribes — more often than not, a version of one answer always comes up about what the US needs to do: honor the treaties.
The US government signed 370 treaties with numerous Indigenous nations from 1778 to 1871. While the language in the treaties is diverse, there are often certain common features of the pacts: a guarantee of peace, a definition of land boundaries, preservation of hunting and fishing rights, and provisions for protection against domestic and foreign enemies.
But these pacts were signed across significantly different periods of history, with incredibly divergent views of what Indigenous nations were. That’s why listening to what Native peoples are actually asking for is so important.
So while just about every candidate at the LaMere Forum said they would honor the treaties or the “Supreme Law” of the United States, what does that actually mean as far as tangible results?
We asked six Indigenous academics, community leaders, and activists what would it look like if the US were to fulfill their trust and treaty responsibilities.
Dr. Cutcha Risling Baldy, Hoopa Valley Tribe/Yurok/Karuk, assistant professor and department chair of Native American studies at Humboldt State University:
Here in California, we actually do not have treaties. Well, we do have treaties, but those treaties were not ratified. There were 18 in total that were made with California Indians in the 1800s, but at the time, Congress decided not to ratify them and then put them under an injunction of secrecy.
Our people had agreed to these treaties in the hopes of finding reprieve from the genocide that was being perpetrated against us by the California government and citizens. Some of my own family members signed these treaties, and later they would tell stories about how hard-fought these negotiations were and how they struggled to reconcile what they had to compromise in order to protect future generations and to protect our lands and more-than-human relatives. When tribes would come to the table to negotiate treaties, they weren’t thinking only about the present, they were thinking about many generations into the future. Their negotiations were about relationship, responsibility, respect, and reciprocity.
Not every tribe in California was able to renegotiate or become recognized after the treaties were rejected. Some tribes who have signed treaties are now “unrecognized” tribes. In 2014, the National Museum of the American Indian featured one of the unratified California Treaties in their exhibits. A colleague visited this exhibit when it opened so she could view this treaty which was signed by some of her relatives. She told me that as she stood before the document, she cried silently to herself. To this day, the federal government does not recognize her people as living California Indians.
Treaties are foundational agreements the United States made with Native nations. Nobody fooled the US into entering into treaties, nobody tricked Benjamin Franklin (or whatever founding father) into building a nation that also had many other nations within it. This is the nation they built; these are the agreements they made. If we honor the Constitution, we have to honor the treaties. If we are truly going to honor the treaties, we have to center Indigenous histories, support self-determination, and build decolonized futures by giving back stolen land. This has happened all over the world, and it has even happened here in California. The return of stolen land is how we truly honor the trust responsibility.
Matthew Fletcher, Grand Traverse Band of Ottawa and Chippewa Indians/Potawatomi descendant, director of the Indigenous Law and Policy Center at Michigan State University College of Law:
Our understanding of the federal government’s duties to Indians and Indian tribes could be on the verge of changing dramatically. But right now, the federal government fails horrifically at the fulfillment of its duties — just look at Indian country’s poverty, crime rates, suicide rates, and poor health indicators.
The original understanding of the federal-tribal relationship was that the United States agreed to undertake a duty of protection to Indians and tribes. This means that the tribes gave up much of their exterior sovereignty, but they were to retain all the internal governmental powers they possess, like the power to make laws and enforce them within the tribe’s territory.
In many treaties, the federal government agreed to guarantee education, health care, housing, and other services to Indian tribes. The United States also agreed to manage and protect Indian tribes’ resources, such as lands and timber.
However, the duty of protection mutated politically into a guardian-ward relationship after a Supreme Court decision in 1831. It would also be the premise for the federal government to label Indian people legally incompetent. This way of thinking reached an apex in the 1880s when Congress federalized jurisdiction in Indian Country, broke up reservations into individual allotments, and made boarding school education mandatory. In the latter half of the 20th century, Congress restored and implemented a modern understanding of the duty of protection, which we call self-determination.
What remains are two kinds of trust duties. The first kind is an actual trust, in which the United States holds and manages Indian and tribes’ assets in a trust. The second kind is referred to by the Supreme Court, inaccurately, as the general trust relationship, a kind of moral obligation to assist tribal interests. Labeling the duty as a moral obligation effectively renders the federal government’s obligations voluntary and unenforceable.
The general trust relationship does have teeth, however. If Congress decides to provide services to Indians or tribes, this modern version of the duty of protection is a source of legal authority for Congress to do so.
But what if Congress chooses not to act? Or the president acts in opposition to tribal interests, seemingly contrary to the duty of protection? Indian nations gave up a lot in exchange for the duty of protection — lands, resources, sovereign powers — and to label the federal government’s duties merely voluntary is atrocious.
This could change dramatically, as I mentioned above. Justice Gorsuch stated in a recent Supreme Court case that he takes very seriously the exchange between sovereigns memorialized in Indian treaties. To paraphrase, he wrote that tribes didn’t give up that much for nothing: Tribes are entitled to something.
Also, and this is not intended to be an endorsement of Elizabeth Warren, if her Indian affairs legislative platform comes to fruition and federal services to Indian country becomes fully funded, that would be a massive step toward the fulfillment of the trust responsibility.
Karen Diver, Fond du Lac Band of Lake Superior Chippewa, director of Business Development of Native American Initiatives at the University of Arizona:
First and foremost, fulfilling the treaties means recognizing that tribal nations are political entities and respecting the right to self-govern. To support that, the federal government needs to fully fund its obligations that were pre-paid by tribes with land.
For example, while there are many issues that contribute to negative health indicators in Indian Country, the chronic lack of funding for the Indian Health Service only makes matters worse. It is time for mandatory, full funding of the Indian Health Service, which is responsible for providing federal health services to Native peoples in the US, as a start toward improving health care in Indian Country.
Another prime example comes from housing services. The Native American Housing Assistance and Self-Determination Act, which simplified the housing assistance process for Indian nations, expired in 2013. While small amounts continue to be funded, the act, as a step toward recognizing the homelessness crisis in Indian Country, needs to be reauthorized.
These obligations also extend not just to the amount of funding authorized but also respecting the self-governance that tribal nations have in relation to that funding. In plain terms, this means not just funding programs in Indian Country but allowing tribal nations to manage those funds in a manner they see fit.
This respect for self-governance also needs to extend to criminal jurisdiction in Indian Country. At the current moment, the Violence Against Women Act and its provisions to allow for prosecution of non-Indians who commit domestic violence on tribal members, expired last year.
The previous examples are just a few small steps toward honoring the treaty obligations of the US, but they are meaningful. They are symbols and recognition that there were fully autonomous self-governing peoples here long before the creation of this country.
DeLesslin George-Warren, citizen of Catawba Nation, consultant for Catawba Nation:
For me, honoring the treaties means truly honoring the fishing, hunting, and harvesting rights guaranteed in most treaties. As many tribes entered into agreements with the Crown and later the US, we were specific in reserving our right to fish, hunt, and harvest as we always have on our lands. And yet tribal members are regularly fined for exercising these rights, and the US and corporations continue to build infrastructure that disrupts our ability to practice our traditional food systems.
For the most part, the federal government and corporations replaced a truly treaty-based negotiation process with a weak and unenforceable “consultation” practice, which doesn’t require much more than asking Indigenous peoples what they think on a particular project. In many cases, as it relates to our sacred sites and treaty rights, even if there is staunch opposition, projects move forward, rendering consultation nothing more than a notification process. Our treaties don’t guarantee consultations that will be ignored.
Treaties guarantee our right to traditional plants, animals, lands, air, and waterways. Projects that inhibit those rights are a violation of our treaties and by extension the Constitution of the United States.
Tara Houska, Couchiching First Nation, tribal attorney
To begin a chapter of US history that does not find its foundation in annually broken treaties, Congress must do its duty to uphold the law.
Realizing the trust responsibility is another matter. To me, it means recognizing and honoring sovereign Native nations as such: independent nations with full authority over criminal, civil, and self-governance matters. We must be able to protect our own people, enforce tribal laws, develop economically, and ensure healthy lands and waters to sustain our communities.
The world is in flux, our shared survival is on the line. Native peoples hold 80 percent of the world’s remaining biodiversity. We are the holders of the sacred. We are the canary in the mine of humanity.
Liz Medicine Crow, Haida/Tlingit, president and CEO of First Alaskans Institute:
It is critical to understand that the basic binding relationship between tribes and the US, and its state and territorial governments, is a political one, as between tribal nations. In essence, what it also means is that instead of trying to undo it, get out of it, or change it in a way that breaks it down, the US government must actually embrace it and do the most it can to uphold these obligations in a respectful government-to-government relationship — working with the tribes, not against them.
And on a personal level, to be a patriot and a citizen of the US means to back up the commitments of this country by upholding and honoring these in-perpetuity obligations to the Indigenous peoples of these lands. Teach it in pre-K-12th grade schools, universities, technical, and trade programs. Make it a basic tenet of your community engagement and best business practices to establish good relationships with local and nearby tribes and tribal citizens. Perform meaningful land acknowledgments at your gatherings and conferences. Educate yourself, your families, and your faith and community organizations about these American responsibilities.
These relationships are a primary obligation of the United States’ nationhood. As a country founded on theft of Indigenous lands and lives and on the theft of black labor and lives through slavery, it means that this country must live up to its own ideals of itself and its legally binding promises, obligations, and commitments to the fullest extent. It means the US has to be honorable; and where it has not been, it must work to rectify this.
Rory Taylor is a Ckiri/Chahta journalist covering Indigenous politics, policy, and the intersection of race, culture, and society in America. Originally from the Los Angeles area, he currently lives on the territory of Ngāti Whātua Orākei in Tāmaki Makaurau and is pursuing a Masters of Indigenous Studies at Te Whare Wānanga o Tāmaki Makaurau.
Author: Rory Taylor