Native American treaties and the Supreme Court

Description: Native Americans’ rights under U.S. law are primarily defined by treaties, which are, in turn, usually defined in international law as formal contracts between nations.

Significance: Treaties signed between the United States and various Native American nations (372 of which were ratified by the Senate through 1871) have been a major source of litigation before the Supreme Court since the 1830’s.

Article III of the U.S. Constitution specifies that the judicial power of the Supreme Court extends to all cases involving the Constitution, federal laws, and treaties. Article VI declares that the “supreme law of the land” includes the Constitution as well as valid congressional statutes and valid treaties, the latter two having equal weight and authority. Whenever a statute and a treaty come in conflict, as sometimes happens, the courts will apply the one that was most recently enacted. Contrary to what is sometimes said, the treaties did not promise to continue “as long as the water will flow and the grass will grow.” If treaties were not necessarily meant to endure in perpetuity, however, the courts assume that they continue to be enforceable until such time as Congress clearly and explicitly declares their termination. The Court has insisted that treaties cannot be abrogated in “a backhanded way.”

U.S. laws regarding Native Americans provide one of the major taproots of American jurisprudence. According to one legal scholar, between 1970 and 1981, the Supreme Court interpreted twenty-two laws written before 1800, and eight of those laws involved Native Americans. Of the twenty-nine Court interpretations of laws written between 1800 and 1850 that the Court ruled on between 1970 and 1981, fourteen involved Native Americans. Between 1970 and 1981, the Court ruled on a total of 182 laws passed between 1850 and 1875; thirty-two of those laws involved Native Americans. Overall, roughly one-quarter of the legal interpretations from the first century of U.S. law involved Native Americans. Among subject areas of law, only the civil rights statutes of the Reconstruction era have been referenced more often by the Court.

The Marshall Trilogy

Chief Justice John Marshall’s rulings occupy a special place in the development of Native American law. They provided the foundations for later arguments about sovereignty as well as justifications for the harsh approaches to the survivors of the “westward movement.” The term “Marshall Trilogy” refers to the principles in his three major opinions on Native American issues: Johnson and Graham’s Lessee v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). Through these decisions, Marshall conceived a model that can be broadly described as recognition for generally autonomous tribal governments that are subject to an overriding federal authority but essentially free of control by the state governments. Key concepts of the Marshall Trilogy have been interpreted by lawyers, judges, legal scholars, and government officials in many different ways through more than a century and a half.

The 1823 McIntosh decision, which dealt with a dispute over land ownership, was the first case in which the Supreme Court defined the relationship between Native Americans and the United States. The Court unanimously held that Indians could not legally transfer land to individuals or to any foreign country, but only to the United States government. In discussing the issue, Marshall explained that the United States acquired absolute title to North American lands through Great Britain’s discovery and conquest of the area. Native Americans, on the other hand, had only a lesser right of occupancy, which could be abolished by either conquest or treaty.

In Cherokee Nation v. Georgia (1831), the Court held that the Cherokee nation, since it was not an independent country, had no standing in federal court to challenge the state of Georgia’s seizure of its lands. Defining the “peculiar” status of the tribes, Marshall wrote that they were “under the sovereignty and dominion of the United States,” and referred to them as “dependent domestic nations.”

A year later, in Worcester v. Georgia, the Court overturned the imprisonment of Samuel Worcester, a missionary who had worked with the Cherokee without obtaining the license required by a state law. Marshall wrote that the state had violated three legal principles: the commerce clause of the Constitution, the treaties between the Cherokee and the federal government, and the residual sovereignty of the Cherokee nation. In contrast to his earlier opinion, he emphasized the word “nation” more than the word “dependent.” He observed, moreover, that Americans of European ancestry had long applied the words “treaty” and “nation” to Indian relationships just as the words had been applied “to the other nations of the earth; they are applied to all in the same sense.” The Worcester ruling would later provide a theoretical precedent to claim that treaties were contracts between two sovereign governments.

There were considerable differences and tensions between Marshall’s Johnson and Cherokee Nation opinions and his Worcester opinion. The first two opinions emphasized congressional power and Native American dependency, while the third opinion focused primarily on Native American sovereign and treaty rights. Since the time that Marshall issued the trilogy, the Supreme Court has sometimes endorsed the one viewpoint, sometimes the other.

Indian Treaties Since 1871

The practice of treaty making between the Indian tribes and the federal government ended with the Appropriations Act of 1871. The major reason for the statute was that the House of Representatives, which had no role in the treaty process, wanted to exercise more control over the expenditures of moneys on Native American concerns. The statute meant that subsequent dealings with Indians would be through agreements, and it specified that no treaty rights would be abrogated as a result of the statute. Whatever the intent of the law, it later turned out that there would be little difference between ratified treaties and agreements that had to be approved by Congress, since they were equally part of the supreme law of the land. In the case of Antoine v. Washington (1975), the Court explicitly declared that the change from treaties to agreements “in no way affected Congress’s plenary power.”

One of the most widely quoted of the treaty decisions is Lone Wolf v. Hitchcock (1903). One of the principal chiefs of the Kiowa people, Lone Wolf had sought an injunction to block congressional ratification of an agreement allotting tribal lands. He argued that the agreement violated the Treaty of Medicine Lodge of 1867, which required the approval of three-fourths of the adult men of the tribe for any cession of tribal land. The Supreme Court unanimously rejected Lone Wolf’s argument. Justice Edward D. White’s opinion stated that Congress had exercised total jurisdiction over tribal affairs “from the beginning” and that the Court must presume the “perfect good faith” of the Congress. He declared that Congress possessed plenary power over Indian property “by reason of its exercise of guardianship over their interests.” Since treaties dealt with political questions, an Indian tribe would have no right to judicial review if Congress should decide to unilaterally modify or even abrogate a treaty. Congress was even empowered to take tribal property reserved in treaties without respecting the just compensation clause of the Fifth Amendment. Although Lone Wolf has sometimes been called “the Indians’ Dred Scott,” it has never been overturned.

Some of the most contested treaty cases that have come before the Supreme Court involve natural resources, including rights to water and rights to hunt and fish. In Winters v. United States (1908), the Court held that the creation of a reservation implies sufficient access to water to support the purpose of the reservation. In the West, where water supplies are in short supply, Winters means that every Native American tribe holds extensive rights to water, with priority based on the date the reservation was established. In dealing with resources, the Supreme Court has not always taken the side of Native Americans. In the case of United States v. Dion (1986), for example, the Court held that Indian treaty rights to hunt bald eagles had been abrogated by both the Bald Eagle Protection and Endangered Species Acts. Although the two statutes did not explicitly state that Congress had intended to abrogate such treaty provisions, the Court found that the statutes clearly and unambiguously indicated that the prohibition on hunting eagles would apply to everyone without exception.

Many of the early nineteenth century treaties reserved the right of Native Americans to fish and hunt in lands off the reservations, commonly using the phrase “usual and accustomed grounds.” At the time, these provisions rarely attracted much notice because reservations tended to be located in sparsely populated regions. In the twentieth century, however, as the country became more densely populated, the issue of fishing and hunting rights has sometimes produced heated controversy. As early as United States v. Winans (1905) the Court ruled that the state governments had no authority to regulate the fishing rights found in treaties.

Conflict between Indians and non-Indians in the salmon fisheries of Washington State became particularly bitter and sometimes violent. In 1968, the Supreme Court upheld rulings in the federal district court recognizing that members of the Puyallup tribe had the right to fish in “usual and accustomed grounds.” However, a few years later the Court upheld a ruling that allowed the state to prohibit net fishing for the purpose of conservation. The Court noted that a treaty provision could not be allowed to result in the depletion of a scarce resource. The relevant treaty of 1855 had stipulated that Indians had the “right of taking fish…in common with citizens.” In 1974, district judge George Boldt interpreted these ambiguous words to mean that Native Americans had the right to take 50 percent of the allowable catch of their fishing regions. Throughout the Pacific Northwest non-Indians were infuriated by Boldt’s ruling, especially after the Supreme Court upheld the ruling in the controversial case of Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979).

Angry controversies about treaty fishing rights also occurred in the northern Midwest. In 1987, district judge Barbara Crabb of Wisconsin ruled that the Ojibwas’ off-reservations fishing rights in northern Wisconsin had never been explicitly abrogated, despite the fact that the more recent treaties had not mentioned anything about fishing. In a subsequent ruling Crabb followed the Boldt precedent in allowing the Ojibwa to take 50 percent of the allowable catch of their fishing region. The Supreme Court upheld the rulings. During the so-called Walleye War of 1988-1991, angry white protestors hurled insults at Ojibwa fishermen. Signs appeared, “Save a walleye, spear an Ojibwa.” The conflict eventually diminished after the governor and the Ojibwa reached an agreement that neither side could appeal. Another bitter controversy occurred in Minnesota after the Supreme Court upheld a lower court’s judgment in Minnesota v. Mille Lacs Band of Chippewa Indians (1999), which recognized that the hunting and fishing rights under an 1837 treaty had not been explicitly abrogated by a later treaty.

Over the years the Supreme Court has developed a number of principles for interpreting treaties, often called “canons of construction,” that tend to favor the Indian perspective. In the case of Carpenter v. Shaw (1930), for example, the Court’s majority declared that “doubtful expressions are to be resolved in favor of the weak and defenseless people who are wards of the nation, dependent upon its protection and good faith.” Another rule is that treaties should be interpreted as Native Americans understood them at the time of their negotiations. Not all justices on the Supreme Court, however, have accepted the validity of these canons of construction.

Bibliography

A good starting point is general reference works on treaties, such as Charles Phillips and Alan Axelrod’s Encyclopedia of Historical Treaties and Alliances (2d ed. New York: Facts On File, 2005) and U.S. Laws, Acts, and Treaties (3 vols. Pasadena, Calif.: Salem Press, 2003), edited by Timothy L. Hall. The most reliable and comprehensive historical account of the subject is in Frances Paul Prucha’s American Indian Treaties: The History of a Political Anomaly (Berkeley: University of California Press, 1994). For the historical and philosophical context of treaty issues, see Charles F. Wilkinson’s American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven, Conn.: Yale University Press, 1987). The most detailed analysis of Marshall’s rulings is in Jill Norgen’s The Cherokee Cases (Norman: University of Oklahoma Press, 2004). Fay Cohen has written a fascinating account of a recent conflict in Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights (Seattle: University of Washingtn Predss, 1988). For current treaty issues, see Bruce Johansen’s Enduring Legacies: Native American Treaties and Contemporary Controversies (Westport: Greenwood Press, 2004). Many important articles on treaties have appeared in the American Indian Law Review, published by the law school of the University of Oklahoma.