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.
Article III of the U.S. Constitution
Native Americans began making treaties with European settlers during the colonial era. Here William Penn, the founder of Pennsylvania, is show treating with representatives of an unnamed Indian society during the late seventeenth century.
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.
Chief Justice John Marshall’s
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
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.
The practice of treaty making between the Indian tribes and the federal government ended with the Appropriations Act of 1871
One of the most widely quoted of the treaty decisions is Lone Wolf v. Hitchcock
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
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
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
Angry controversies about treaty fishing rights also occurred in the northern Midwest. In 1987, district judge Barbara Crabb
Over the years the Supreme Court has developed a number of principles for interpreting treaties, often called “canons of construction,”
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.
Johnson and Graham’s Lessee v. McIntosh
Native American sovereignty
Worcester v. Georgia