Tribal Sovereignty and Treaty Rights


Tribal Sovereignty

Tribal sovereignty encompasses legal, cultural, political, and historical traditions that are a complex mix of both European and Indigenous approaches to governance. There are three types of sovereign governments in the United States: the federal government, state governments, and tribal governments.

• A federal government derives its sovereign power from the people—its voting citizens.
• A state government derives its sovereign power from the federal government.
• A tribal government derives its sovereign power from the people and from its connection to ancestral territory. Tribal sovereignty is not a gift bestowed by an external government and is not outlined in the U.S. Constitution, although the sovereign status of tribes is recognized by the U.S. government and has been upheld by the U.S. Supreme Court.

Sovereign nations have the right to form their own government, determine membership or citizenship, make and enforce laws, regulate trade within borders, and form alliances with other nations. Sovereignty is the internationally recognized right of a nation to govern itself, and American Indian tribes existed as sovereign governments long before Europeans settled in the Americas.

In the pre-contact period tribes embodied sovereignty by negotiating treaties and agreements with each other. In the colonization period, sovereignty was inherent in the interactions between tribes and the developing government of the United States and was later described in the Commerce Clause of the U.S. Constitution, which states “The Congress shall have power ... to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes” (Article I, Section 8, Clause 3). Many subsequent legal cases have firmly established the government-to government relationship between American Indian tribes and the U.S. government.

In the treaty period, sovereignty was formalized in nation-to-nation agreements between tribes and the U.S. government. This is unique in that the U.S. government does not have treaties with the individual 50 states and treaties are, by definition, agreements made between sovereign nations. The treaties recognize American Indian tribes as domestic sovereign nations that possess self-government, which means that state governments generally do not have powers within reservations.

In subsequent historical periods, the U.S. government repeatedly failed to uphold treaty agreements, particularly in regard to the education of American Indian/Alaska Native children and youth. As a result, there have been a series of legislative acts that are designed to hold the government accountable for meeting its obligations to Indigenous students, including:

• 1930 Johnson O’Malley Act
• 1950 Impact Aid Law
• 1972 Indian Education Act
• 1975 Indian Self-Determination and Education Assistance Act
• 1978 Tribally Controlled Community Colleges Act
• 1988 Tribally Controlled Schools Grants Act
• 1990 Native American Languages Act

While Native Americans exist in a complex social, cultural, and political context, many distinct Indigenous cultures, languages, and ways of being have survived and continue to transcend erasure and colonization. Schools and districts can draw on these exemplars of survivance and self-determination as part of a “culture-as-intervention” approach to working with Indigenous students. This approach was developed in the mental health and addiction counseling fields and encourages individuals to embrace their cultural identity as part of an overall physical and mental wellness program.

To understand how culture as intervention could inform the education of Indigenous youth it is necessary to have some basic understanding of contemporary Native identity, including common myths, stereotypes, and cultural misunderstandings that may impact how Native youth are treated in a public school environment.

Why Treaties Matter?!

Constitution of the United States

Article VI

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

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.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Shared History

"We are all Treaty People" - Nancy Beaulieu

It is a shared history, between our founding fathers and our indigenous ancestors, of battles, wars and colonization. Where both sat down at the table and gave constitutional binding responsibilities to each other. Treaties are more than documents they are living and breathing as our U.S. Constitution, that we govern our country by.

Through those documents we share those responsibilities to our indigenous and allied communities, to live, grow and coexist with each other. Just as we are responsible to learn and follow the laws of the land, which importantly extends to our treaties with the first people of these lands we call our home.

The 7th Generation

The red nation shall rise again, and it shall be a blessing for a sick world; a world filled with broken promises, selfishness and separations; a world longing for light again. I see a time of seven generations when all the colors of mankind will gather under the sacred tree of life and the whole earth will become one circle again.

– Tȟašúŋke Witkó (Crazy Horse), Oglala Lakota Leader (1840-1877)

Mining and the Marginalization of Reserved Treaty Rights

Robert Desjarlait
September 30, 2012

"Ojibwe treaty rights are a device to help keep the land healthy.”- Prof. Peter Erlinder