Native American Rights
| Author | Jeffrey Lehman, Shirelle Phelps |
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In the United States, persons of Native American descent occupy a unique legal position. On the one hand, they are U.S. citizens and are entitled to the same legal rights and protections under the Constitution that all other U.S. citizens enjoy. On the other hand, they are members of self-governing tribes whose existence far predates the arrival of Europeans on American shores. They are the descendants of peoples who had their own inherent rights?rights that required no validation or legitimation from the newcomers who found their way onto their soil.
These combined, and in many ways conflicting, legal positions have resulted in a complex relationship between Native American tribes and the federal government. Although the historic events and specific details of each tribe's situation vary considerably, the legal rights and status maintained by Native Americans are the result of their shared history of wrestling with the U.S. government over such issues as tribal sovereignty, shifting government policies, treaties that were made and often broken, and conflicting latter-day interpretations of those treaties. The result today is that although Native Americans enjoy the same legal rights as every other U.S. citizen, they also retain unique rights
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in such areas as hunting and fishing, water use, and GAMING operations. In general, these rights are based on the legal foundations of tribal sovereignty, treaty provisions, and the "reserved rights" doctrine, which holds that Native Americans retain all rights not explicitly abrogated in treaties or other legislation.
Tribal sovereignty refers to the fact that each tribe has the inherent right to govern itself. Before Europeans came to North America, Native American tribes conducted their own affairs and needed no outside source to legitimate their powers or actions. When the various European powers did arrive, however, they claimed dominion over the lands that they found, thus violating the sovereignty of the tribes who already were living there.
The issue of the extent and limits of tribal sovereignty came before the U.S. Supreme Court in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823). Writing for the majority, Chief Justice JOHN MARSHALL described the effects of European incursion on native tribes, writing that although the Indians were " admitted to be the rightful occupants of the soil ? their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." The European nations that had "discovered" North America, Marshall ruled, had "the sole right of acquiring the soil from the natives."
Having acknowledged this limitation to tribal sovereignty in Johnson, however, Marshall's opinions in subsequent cases reinforced the principle of tribal sovereignty. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), Marshall elaborated on the legal status of the Cherokees, describing the tribe as a "distinct political society that was separated from others, capable of managing its own affairs, and governing itself." In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832), Marshall returned to the issue, this time in an opinion denying the state of Georgia's right to impose its laws on a Cherokee reservation within the state's borders. He rejected the state's argument, writing "The Cherokee nation ? is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force." Reviewing the history of relations between native tribes and the colonizing European powers, Marshall cited the Indians '"original natural rights," which he said were limited only by "the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed."
The cumulative effect of Marshall's opinions was to position Native American tribes as nations whose independence had been limited in just two specific areas: the right to transfer land and the right to deal with foreign powers. In regard to their own internal functions, the tribes were considered to be sovereign and to be free from state intrusion on that sovereignty. This position formulated by Marshall has been modified over the years, but it continues to serve as the foundation for determining the extents and limits of Native American tribal sovereignty. Although Congress has the ultimate power to limit or abolish tribal governments, until it does so each tribe retains the right to self-government, and no state may impose its laws on the reservation. This position was reiterated in a 1978 U.S. Supreme Court case, United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303, in which Justice POTTER STEWART concluded that "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."
The ways that individual tribes exercise their sovereignty vary widely, but, in general, tribal authority is used in the following areas: to form tribal governments; to determine tribal membership; to regulate individual property; to levy and collect taxes; to maintain law and order; to exclude non-members from tribal territory; to regulate domestic relations; and to regulate commerce and trade.
From the time Europeans first arrived in North America, they needed goods and services from Native Americans in order to survive. Often, the terms of such exchanges were codified in treaties, which are contracts between sovereign nations. After the American Revolution, the federal government used treaties as its principal method for acquiring land from the Indians. From the first treaty with the Delawares in 1787 to the end of treaty making in 1871, the federal
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government signed more than 650 treaties with various Native American tribes. Although specific treaty elements varied, treaties commonly included such provisions as a guarantee of peace; a cession of certain delineated lands; a promise by the United States to create a reservation for the Indians under federal protection; a guarantee of Indian hunting and fishing rights; and a statement that the tribe recognized the authority or placed itself under the protection of the United States. Treaty making ended in 1871, when Congress passed a rider to an Indian appropriations act providing, " No Indian nation or tribe ? shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty ?" (25 U.S.C.A. § 71). This rider was passed largely in response to the House of Representatives' frustration that it was excluded from Indian affairs because the constitutional power to make treaties rests exclusively with the Senate. Since 1871, the federal government has regulated Native American affairs through legislation, which does not require the consent of the Indians involved, as treaties do.
Indian treaties may seem like historical documents, but the courts have consistently ruled that they retain the same legal force that they had when they were negotiated. Despite frequent challenges and intense opposition, courts have upheld guaranteed specific tribal rights, such as hunting and fishing rights. Often, disputes over treaty rights arise from conflicting interpretations of the specific language of treaty provisions. In general, there are three basic principles for interpreting treaty language. First, uncertainties in Indian treaties should be resolved in favor of the Indians. Second, Indian treaties should be interpreted as the Indians signing the treaty would have understood them. Third, Indian treaties are to be liberally construed in favor of the Indians involved. Courts have consistently upheld these principles of treaty interpretation, which clearly favor the Indians, on the basis that Indian tribes were the much weaker party in treaty negotiations, signing documents written in a foreign language and often with little choice. Liberal interpretation rules are designed to address the great inequality of the parties' original bargaining positions.
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Another crucial factor in the interpretation of Native American treaties is what is known as the reserved rights doctrine, which holds that any rights that are not specifically addressed in a treaty are reserved to the tribe. In other words, treaties outline the specific rights that the tribes gave up, not those that they retained. The courts have consistently interpreted treaties in this fashion, beginning with United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905), in which the U.S. Supreme Court ruled that a treaty...
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