Sovereign Nations: An Introduction to the Nation-to-Nation Treaty Relationship Between the United States and American Indian Tribes
Jacob C. Jurss
As I sipped my coffee and opened my social media accounts on July 5th, dozens notifications about NPR’s 29-year tradition of reading the Declaration of Independence peppered my newsfeed. NPR had tweeted the entirety of the Declaration to its follows, some of whom did not recognize it and believed NPR was criticizing the current administration. As I scanned the commentaries on the unfolding Twitter storm I struggled with my own reaction. My thoughts hovered towards concern that if American citizens had problems recognizing the Declaration of Independence, how would my students grasp American Indian tribes’ nation-to-nation relationship with the federal government? How did my approach to teaching treaty rights and the concept of tribal sovereignty aid their understanding? My concern subsided into a sense of determination. A nation’s obligations and history are inherited by its citizens, and in this time of Trumpian alt-facts, where alt-history is a half-step away, challenging students to engage critically and thoughtfully with primary sources like treaties and foundational documents paired with analyses of secondary sources is not only possible, but essential to an engaged citizenry.
In the past I noticed students struggled to understand the importance of treaty rights if I did not build a strong foundation of what constituted tribal sovereignty. In restructuring my lectures it felt necessary to step back further to explain that within the current geographical boundaries of the United States, there are 567 federally recognized tribes with many others recognized by state government and petitioning for federal recognition. In the past this fact alone often shocked students. Building on this scaffolding is the idea that each tribe maintains a separate and unique history of interaction with the United States, but all tribes hold one thing in common: They are sovereign nations. This sovereignty consists of holding the supreme authority over a particular area. All treaty rights stem from the inherit sovereignty of American Indian tribes.
Early treaty councils following the American Revolution between tribes and the federal government laid the future foundation of their legal relationship. The Constitution of the United States and a set of three cases known as the Marshall Trilogy are often used to demonstrate this relationship in textbooks and introductory courses. The right to enter into treaties was enshrined in Article 1, Section 8 of the Constitution, commonly known as the Commerce Clause. It states, “Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article 2 Section 2 lists the powers and duties of President, including that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” Scholar K. Tsianina Lomawaima notes that Article 6 of the Constitution, the Supremacy Clause, names treaties specifically as a federal tool and a part of “the supreme Law of the Land.” Supreme Court Justice John Marshall used these portions of the Constitution to justify the federal government’s authority in dealings with tribes. The first of the Marshall trilogy, Johnson v. M’Intosh (1823), disallowed private citizens from purchasing lands directly from tribes and instead reserved that power for the federal government. Cherokee Nation v. Georgia (1831) deemed tribes as “domestic dependent nations”, and Worcester v. Georgia (1832) confirmed that only the federal government could make formal relations with American Indian tribes. While Marshall’s rulings purported to limit the extent of tribal sovereignty in the American court system, they did preserve treaties made with the United States as the supreme law of the land. Marshall explained in his 1832 ruling of Worcester v. Georgia,
The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable of making treaties. The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.
The Marshall trilogy both confirmed tribal legal rights by building the legal framework for federal American Indian law in the United States and attempted to diminish tribal power to the murky status of “domestic dependent nations.” Following these cases it was clear that the federal government, not the states, held the power to negotiate and direct Indian policy.
The federal government increased its participation in treaty negotiations. Represented by commissioners and Indian agents, the federal government met with tribal leadership in highly ritualized ceremonies that often relied on the exchange of gifts to facilitate discussion. However, treaty-making was costly and time-consuming. In 1871 the federal government unilaterally ended the practice of treaty-making, yet treaties made prior to 1871 maintained their status as the supreme law of the land.
Less often used as primary sources in survey courses are the treaties themselves. In many treaties, tribal leaders preserved selected hunting, gathering, fishing, and access rights on both ceded and unceded lands. These usufructuary rights have been at the root of both historical and contemporary defenses of tribal sovereignty. In 2013 the Bad River Chippewa (Ojibwe) of Wisconsin invoked their treaty rights in an effort to halt construction of a new iron ore mine. The treaties between the Minnesota Ojibwe and United States made in 1837, 1854, and 1855 have been cited in a 2016 case regarding the legality of using gillnets and the gathering of wild rice by tribal members. Of note is Article 5 of the 1837 treaty, which states,
The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States.
Native water protectors protesting the Dakota Access Pipeline project have cited, in addition to more recent laws, treaty rights including the 1851 Fort Laramie and 1868 Treaty with the Sioux in an effort to defend waters they hold sacred.
The history of the United States is linked to the history of the Native nations because it is tribal lands that are claimed by the federal government as the territory of the United States. Professor K. Tsianina Lomawaima writes, “Formatively, Native nations set the conditions for the creation of the United States as Native lands were claimed as U.S. land. Everything else flows from that irreducible violence.” By integrating treaty history into U.S. history courses, students are exposed to the creation myths of the American Republic, and forced to consider the United States’ responsibility to uphold treaties. Legal, social, political, cultural, economic, and environmental history are all tied to the nation-to-nation relations enshrined in the treaties between American Indians and the United States. Foundational American documents like the Declaration of Independence demonstrate the idealistic aspirations for the United States and are required reading for all American citizens. But expanding on this foundation by exposing students to the history of American Indian treaties forces them to critically confront and acknowledge the United States’ role and responsibility in Native land dispossession and cultural destruction. The following list offers a partial collection of resources and links to help students explore the complicated relationship between the federal, state, and tribal governments.
 K. Tsianina Lomawaima, “Federalism: Native, Federal, and State Sovereignty,” in Why You Can’t Teach United States History without American Indians, ed. Susan Sleeper-Smith et. al. (Chapel Hill, NC, 2015), 275.
 Worcester v. Georgia, 31 U.S. 515 (1832).
 Charles J. Kappler, “Treaty with the Chippewa, 1837,” July 29, 1837, 7 Stat., 536 Proclamation, June 15, 1838,” Indian Affairs: Laws and Treaties: Vol. II Treaties (Washington, 1904). On-line Oklahoma State University Library, http://digital.library.okstate.edu/kappler/vol2/treaties/chi0491.htm.
 Lomawaima, “Federalism: Native, Federal, and State Sovereignty,” 273.
Listed below is a small selection of treaty councils with American Indian that exemplify the nation-to-nation relationship.
Muscogee Treaty, 1790
Treaty with the Six Nations, 1794 (Treaty of Canadaigua 1794)
Treaty with the Potawatomi, 1809
Treaty with the Potawatomi, 1836
Treaty of St. Peters of 1837 (White Pine Treaty)
Treaty of Horse Creek (Fort Laramie), 1851
Unratified California Treaty K, 1852
Medicine Creek Treaty 1854
Navajo Treaty 1868
Treaty with the Sioux, 1868
Federal Indian Law and Treaties
“American Indian Treaties,” National Archives, Oct. 4, 2016. Accessed June 14, 2017. https://www.archives.gov/research/native-americans/treaties.
DeJong, David H., American Indian Treaties: A Guide to Ratified and Unratified Colonial, United States, State, Foreign, and Intertribal Treaties and Agreements, 1607-1911 (Salt Lake City, UT, 2015).
Deloria Jr. Vine and Raymond DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775‒1979 (Norman, OK, 1999).
Kappler, Charles J., ed., Indian Treaties 1778‒1883 (New York, 1972). Kappler’s collection has been digitized by the Oklahoma State University Library and can be found online here.
“Nation to Nation: Treaties Between the United States and American Indian Nation,” National Museum of the American Indian. Accessed June 14, 2017. http://nmai.si.edu/nationtonation/.
Constitution, Federal Indian Law, Supreme Court Cases
The Constitution of the United States (1789).
Northwest Ordinance, “An Ordinance for the Government of the Territory of the United States North-West of the River Ohio, July 13, 1787.
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)
Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831)
Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832)
DeMallie, Raymond J., “Touching the Pen: Plains Indian Treaty Councils in Ethnohistorical Perspective,” in Ethnicity on the Great Plains, ed. Frederick C. Luebke (Lincoln,NE, 1980), 38-53.
Harring, Sidney, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York, 1994).
Lomawaima, K. Tsianina, “Federalism: Native, Federal, and State Sovereignty,” in Why You Can’t Teach United States History without American Indians, ed. Susan Sleeper-Smith et. al. (Chapel Hill, NC, 2015), 273‒286.
Prucha, Francis Paul, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790‒1834 (Lincoln, NE, 1962).
Ramirez-Shkwegnaabi, Benjamin, “The Dynamics of American Indian Diplomacy in the Great Lakes Region,” American Indian Cultural and Research Journal 27, no. 4 (2003), 53‒77. doi. http://dx.doi.org/10.17953/aicr.27.4.f2217880186w0332.
Treuer, Anton, Everything You Wanted to Know About Indians But Were Afraid to Ask (St. Paul, MN, 2012).
Wilkins, David E. and Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System (Lanham, MD, 2011).
Wilkins, David E. and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman, OK, 2001).
Bergquist, Lee, “Bad River Chippewa Could Have Say in Gogebic Iron Ore Mine,” Milwaukee Journal Sentinel (WI), Feb. 17, 2013. Accessed June 14, 2017. http://archive.jsonline.com/news/wisconsin/bad-river-chippewa-could-have-say-ingogebic-iron-ore-mine-ek8pstn-191612841.html.
Enger, John, “Explaining Minnesota’s 1837, 1854 and 1855 Ojibwe treaties,” MPR News, Feb. 1, 2016. Accessed June 14, 2017. https://www.mprnews.org/story/2016/02/01/explaining-minnesota-ojibwe-treaties.
Hersher, Rebecca, “U.S. Government To Pay $492 Million to 17 American Indian Tribes,” National Public Radio, Sept. 27, 2016. Accessed June 14, 2017. http://www.npr.org/sections/thetwo-way/2016/09/27/495627997/u-s-government-to-pay-492-million-to-17-american-indian-tribes.
Matson, Laura, “Treaties & Territory: Resource Struggles and the Legal Foundations of the U.S./American Indian Relationship” In Open Rivers: Rethinking The Mississippi, no. 5, 2017. http://openrivers.umn.edu/article/treaties-territory/.
Minnesota Indian Affairs Council, “Relations: Dakota & Ojibwe Treaties; A Companion to Why Treaties Matter, an exhibit of the Minnesota Indian Affairs Council.” Accessed July 7, 2017. http://treatiesmatter.org/index.php.
NYC Stands with Standing Rock Collective, “#StandingRockSyllabus.” 2016. Accessed June 14, 2017. https://nycstandswithstandingrock.wordpress.com/standingrocksyllabus/.
Whyte, Kyle, “Indigenous Climate Change & Climate Justice Teaching Materials & Advanced Bibliography,” Dr. Kyle Whyte Teaching Resources. Accessed June 14, 2017. http://kylewhyte.cal.msu.edu/climate-justice/.
17 October 2017
About the Author
Jacob C. Jurss is a NASNTI Post-Doctoral Fellow at the University of Minnesota, Morris.