PERSISTING SOVEREIGNTIES.

• Author: Davis, Seth

INTRODUCTION

In the fall of 1775, Koquethagechton, the speaker of the Lupwaaeenoawuk, the Great Council of the western Delawares, traveled to Fort Pitt for talks with officials of the Second Continental Congress of the thirteen American colonies as well as representatives from the Haudenosaunee Confederacy, the Shawnee Nation, the Ottawa Nation, and the Wyandot Nation. (1) A few months earlier, the Continental Congress had authorized the creation of a Continental Army, which was already laying siege to the British forces in Boston. (2) It would be nearly a year, however, before the Congress declared that the colonies were "Free and Independent States," not subjects of the British Crown. (3) By contrast, a western Delaware declaration was forthcoming at Fort Pitt. Koquethagechton informed the Congress's representatives that the Kalalamint, Walapachakin, and Ohokon had allied as "the Delaware Nation," free and independent of the Haudenosaunee Confederacy and neutral in the conflict between the Crown and the colonies. (4)

Three years later, in the fall of 1778, Koquethagechton traveled again to Fort Pitt. He and two other tribal leaders, Gelelemend and Kageshquanohel, acting as "Deputies and Chief Men of the Delaware Nation," (5) met with agents of the "United States of North-America" to negotiate a treaty. (6) Worried that his people would soon be "trapped in a corner," Koquethagechton sought a military alliance and the promise of mutual assistance and protection from the United States. (7) For its part, the fledgling American republic needed the Delaware Nation's support and free passage for American troops through Delaware lands. (8) The Treaty of Fort Pitt, negotiated where downtown Pittsburgh now stands, acknowledged the Delawares as a "nation" and pledged the parties to a mutual "confederation" between "states." (9)

A skilled diplomat, Koquethagechton had declared the independence of the Delaware Nation and obtained recognition through the first treaty negotiated between the United States and an Indian nation. (10) He would not live to see the treaty broken or to watch as less favorable treaties were negotiated between the Delaware Nation and the United States. (11) But his vision lived on in a Delaware prayer--one that begins: "We belong unto a nation" (12)--and through the Treaty of Fort Pitt's model of political and legal relations between American Indian tribes and the United States.

In 1832, the United States Supreme Court looked to the Treaty of Fort Pitt as representative of the political relationship between Indian tribes and the United States. (13) The case, Worcester v. Georgia, was the culmination of a legal and political campaign by the Cherokee Nation to hold the United States to its treaty promises to protect the Nation's sovereignty and lands from encroachment by white settlers and state officials. (14) In ruling that the state of Georgia could not legislate over the lands of the Cherokee Nation, a sovereign nation, the Court considered the history of U.S. treaties with Indian Tribes, beginning with the Treaty of Fort Pitt. "This treaty," the Court explained, "is formed, as near as may be, on the model of treaties between the crowned heads of Europe." (15)

What was this international law "model of treaties"? This Article offers the most comprehensive answer to that question to date, some of which is based upon translation of foreign sources as yet unexplored by scholars of federal Indian law. (16) Legal scholars have emphasized the Marshall Court's reliance upon international law but have not reconstructed the meaning of its terms through analysis of the international law commentary cited by the Marshall Court in the foundational cases of federal Indian law and examples of shared sovereignty that were familiar to lawyers at the time. (17) This Article fills that gap and explores implications of this understanding for contemporary debates about the sovereignty of Indian tribes.

The relationships between tribes and the federal government have continued to the present day--over two centuries of tribal persistence in the face of removal, conflict, and dispossession. The nature of those relationships provides the framework for determining questions essential to the sovereignty and wellbeing of Native communities in the United States, and to the interactions between Native and non-Native communities throughout the country. The characterization of that relationship, for instance, is at the heart of whether tribal governments have authority over child custody and adoption proceedings for children with direct connections to tribes, (18) or whether tribes can exercise criminal jurisdiction over non-Indians who commit crimes against tribal members on tribal lands. (19)

Last Term, the United States Supreme Court confronted the debate about tribal sovereignty in McGirt v. Oklahoma. (20) The question before the Court arose when a criminal defendant challenged the State of Oklahoma's authority to prosecute him on the ground that the alleged crime occurred in "Indian Country," specifically the reservation of the Muscogee (Creek) Nation, over which the State lacked criminal jurisdiction. (21) In an opinion by Justice Neil Gorsuch, the Court held that the Creek Nation's reservation "persists today." (22) Treaties between the United States and the Creek Nation recognized the Nation's sovereignty and pledged the United States' protection for its lands. (23) Congress has never broken this treaty promise, upon which the Creek Nation continues to depend. (24) The State of Oklahoma argued that its historic practices of exerting authority over the Creek Nation's lands authorized it to continue to do so, notwithstanding the Creek Nation's objection. (25) The Court held that Oklahoma's argument could not be reconciled with policies "deeply rooted in this Nation's history." (26) The Marshall Court had recognized that "[t]ribes were 'distinct political communities'" whose right to selfgovernment was "'guarantied by the United States.'" (27) Tribal sovereignty persists under federal law, the McGirt Court reasoned, unless and until the United States breaks the promises upon which tribes depend. (28)

The Court's recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary. Federal lawmakers who share Justice

Gorsuch's commitment to originalism treated the case as an unprecedented surrender of state sovereignty to tribes. (29) Legal scholars joined the critical chorus, with one arguing that Gorsuch's opinion was incoherent and would "serve only to undermine textualism." (30) These critics apparently shared the premise that the story of sovereignty in the United States has been one of a simple division between the federal government and the states of the Union. On that premise, McGirt "has literally cut Oklahoma in half," (31) and portends the future loss of "Manhattan." (32) But the story of sovereignty was not that simple in 1778, when the Treaty of Fort Pitt was signed, or in 1832, when the Marshall Court read that treaty as evidence of the United States' recognition of the sovereignty of Indian tribes.

This Article offers a new account of the significance of the federal government's original recognition of tribes as "states" and "nations." In Cherokee Nation v. Georgia, Chief Justice Marshall concluded that the federal "government [had] plainly recognize[d] the Cherokee Nation as a state," that is, "as a distinct political society." (33) And in Worcester v. Georgia, its most thorough statement on tribal sovereignty, the Marshall Court reasoned that tribes were "nations" with whom the United States had entered into treaties. (34) The terms "treaty" and "nations," the Court explained, had "well-understood meaning[s]" under the law of nations and applied to tribes as they applied "to the other nations of the earth." (35) Through a close reading of international law commentary, and an analysis of examples of shared sovereignty, this Article provides historical support for the persistence of tribal sovereignty.

Encounters between Indigenous Peoples and European colonial powers shaped the law of nations and the modern conception of sovereignty. (36) Indian tribes and European colonists treated with one another on the North American continent while this conception was still developing. Then, as today, facts on the ground did not fit within a definition of sovereignty as one supreme and indivisible authority within a territory. And then, as today, Indian tribes drew non-Indians into their traditions of diplomacy while simultaneously drawing upon the legal and political traditions of colonial powers, including international law. The law of nations, as the law of empire, did not correspond to Indigenous conceptions of relations among peoples. By the nineteenth century, when the Cherokee Nation filed a bill proclaiming its sovereignty with the Supreme Court, the law of nations already provided ground for racialized arguments against recognition of tribal sovereignty. Yet it also furnished concepts of nationhood and divided sovereignty that Indian tribes marshalled in defense of their lands and rights. When the Cherokee Nation's lawyers argued as much to the Supreme Court, the Court held that the United States had consistently recognized the national sovereignty of Indian tribes. (37)

To understand the significance of this recognition requires turning to the contemporary international law commentary on and other historical examples of divided sovereignty. "Nations," as Emer de Vattel, the most influential international law commentator for Americans, defined the term, were "bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage...." (38) A "sovereign state" was a "nation that govern[ed] itself." (39) In Cherokee Nation v. Georgia, Chief Justice Marshall invoked these background understandings from the law of nations when he...