Flawed Treaties or Legal Safeguards? Examining the Prospects for Increased Tribal Rights

As of January 2024, the United States government formally recognizes five hundred and seventy four Native American tribes. While this may appear to be an insignificant, bureaucratic tally, federal recognition is actually quite important: in obtaining it, tribes become eligible for specialized benefits and an elevated degree of autonomy. [1] As such, given the coveted nature of these privileges, it should come as no surprise that indigenous communities are in constant legal competition to secure them. In fact, in recent years, nearly every Supreme Court docket in recent memory has included at least one indigenous-related case. Most recently, the Court heard arguments in Arizona v Navajo Nation (2023), which dealt with the United States’ obligation to provide water to the Navajo tribe. In a narrow 5-4 decision, the Court ruled that an 1868 treaty did not compel the federal government to secure water rights for members living on the reservation. [2] Although the ruling was somewhat expected, it prompted many legal commentators to reexamine the federal government’s recent aversion towards supporting indigenous communities. Perhaps no example better demonstrates this hostility than funding figures; this fiscal year, the agency responsible for tribal affairs, the Department of the Interior, is projected to have the second lowest budget of all federal agencies. [3] When analyzed in conjunction, such observations raise a concerning question—do Native American leaders have a reasonable pathway to improving their collective status? When analyzing recent Supreme Court decisions regarding water access, land sovereignty, and tribal autonomy, it appears that indigenous communities still have multiple avenues to obtaining advancements in each of these areas.

Before analyzing legal court decisions, it’s important to acknowledge the sordid history of indigenous disposition. From their migration to North America, European settlers systematically attempted to exterminate the native inhabitants of the land. As part of this campaign, settlers often assaulted Native Americans, subjecting them to torture, murder, and enslavement. Even when groups of tribal communities managed to escape death, Europeans pillaged indigenous natural resources, limiting their access to food, water, and land. The impacts of these atrocities continue to be felt today, with Native American communities experiencing heightened levels of economic and social inequality. [4] For example, the poverty rate for families living on reservations is nearly double that of the national average, and the median household income for indigenous citizens is nearly 30% lower than the national average. [5] On the health front, hundreds of thousands of American Indians continue to live without health insurance, predisposing them to far higher rates of diseases and untreated medical conditions. [6]

The largest tribe today, the Navajo Nation, was forced to endure a similarly violent military campaign by the United States throughout the 19th century. [7] Notably, starting in 1864, thousands of Navajos were rounded up and expelled from their territory and subsequently imprisoned. [8] However, after this displacement began incurring a significant financial burden upon the federal government, Congress rushed to draft an agreement that would allow the Navajos to return to their homeland. In 1868, this treaty was adopted, allowing thousands of forcibly relocated tribal members to return to the newly recognized Navajo Nation. [9] Nevertheless, despite this breakthrough, the accord was loaded with over a dozen provisions that restricted Navajo activity. For example, the tribe was forced to relinquish claims to other lands and send children to schools dictated by stringent federal policies. [10] In contrast to these significant sacrifices, the treaty imposed a handful of obligations upon the United States. Perhaps most importantly, national agencies were to be responsible for providing the Nation with various supplies to sustain themselves. [11]

Given the federal government’s role in perpetuating oppression against Native Americans, one would think that it would be quick to fulfill its obligations as prescribed by the 1868 treaty. However, to the contrary, the United States has largely bided its time, doing little to support the Navajo Nation. After decades of inaction, the tribe chose to air its grievances through the judicial system, alleging that the federal government had not taken affirmative steps to secure clean drinking water. Although the Supreme Court partially rejected these claims in Arizona v Navajo Nation, the dissent makes a series of interesting counterarguments. Justice Neil Gorsuch begins by noting that the 1868 treaty can only be interpreted to obligate federal authorities to provide water for the Nation. For example, Justice Gorsuch contends that the treaty’s promise of a reservation that would serve as a “permanent home” must be interpreted from a holistic perspective. [12] While some may argue that the incredibly vague term “home” precludes specific obligations from being imposed upon the United States, Justice Gorsuch alludes to the word in its most literal sense—all homes and individuals depend upon water for their survival. Put simply, he argues that the fundamentality of certain rights such as water access isimplicit in the treaty regardless of its specific terminology. One can extrapolate this logic further; in particular, by painting the 1868 treaty as “valueless” if the United States is not required to provide essential needs, Justice Gorsuch provides indigenous communities with a legal framework to secure remedies from the federal government. [13]

In theory, such an idea enables Native Americans to seek advancements in myriad areas beyond water rights. For instance, tribes have long sparred with the government over land sovereignty, and this strategy could aid their efforts to reclaim more territory. As a matter of fact, a similar line of reasoning was successfully employed in the 2020 Supreme Court case McGirt v Oklahoma. The case dealt with a man who was convicted of crimes by the state of Oklahoma within the historical boundaries of the Creek Nation. As such, given the competing claims of state and tribal sovereignty, many legal observers interpreted it as a jurisdictional fight. [14] In siding with the Native American plaintiff, the Court upheld the historical boundaries of the Creek Nation. In his majority opinion, Justice Gorsuch writes that an 1856 treaty guarantees the Nation a “permanent home” with “full jurisdiction” over the territory. [14] By literally taking these words at face value, Justice Gorsuch demonstrates how other attempts to read an external meaning into the treaty are invalid. From this logic, it follows that the Creek are entitled to their land and may thus enforce their own laws so long as they don’t violate the terms of the treaty. Justice Gorsuch’s opinion builds upon this discussion by stressing how the 1856 agreement was never formally rescinded, thereby implying that its words still retain their authority. One can utilize this argumentation to broadly suggest that treaties are enduring documents, conferring rights upon tribes years beyond their initial date of adoption. As such, McGirt v Oklahoma elucidates how tribes can depend on existing accords in pursuit of expanded rights.

One can apply this line of reasoning to other rights like self-autonomy, which tribes have desired for centuries. In the recent Supreme Court case Haaland v Brackeen (2022), the justices held that it was legally permissible for Native American families to have priority in adopting indigenous children. [16] To justify this conclusion, Justice Amy Coney Barrett wrote in the opinion of the Court that the law in question, the Indian Child Welfare Act, is consistent with the Constitution in part because it does “authorize Congress to regulate custody proceedings for Indian children.” [17] In arriving at this conclusion, she affirms the idea that the government may address issues particular to one racial community. As a result, Justice Barrett implicitly rejects the notion that the Act was originally meant to discriminate against non-indigenous families. From this example, one can infer that most laws that are tailored to indigenous communities bolster their autonomy, thereby increasing the rights they maintain. Thus, simply enforcing laws that have been historically adopted provides a framework to grant Native Americans legal protections.

Tribal nations have long been subject to oppression by the United States government. While these communities no longer face the same amount of physical violence they previously did, they continue to experience discrimination in the form of structural disadvantages. A number of recent Supreme Court decisions have touched upon these inequities, with a mixed record of results. However, by drawing upon the dissents and majority opinions of these decisions, it appears that Native Americans can expand their water rights, land sovereignty, and tribal autonomy by primarily stressing the implementation of historical laws and agreements as they were initially designed. Although such a strategy will not yield transformative change overnight, it is entirely plausible that this legal framework will gradually chip away at the federal policies that have degraded these communities for so long.

Edited by Henry Wagner

[1] Mainon Schwartz, “The 574 Federally Recognized Indian Tribes in the United States,” Congressional Research Service, January 18, 2024, https://crsreports.congress.gov/product/pdf/R/R47414.

[2] Arizona v Navajo Nation, 599 U.S. 555, 544 (2023)

[3] “Budget of the U.S. Government for the Fiscal Year of 2024, by Agency,” Statista, November 3, 2023, https://www.statista.com/statistics/200386/budget-of-the-us-government-for-fiscal-year-2012-by-agencies/.

[4] Erin Cech et al., “Epistemological Dominance and Social Inequality: Experiences of Native American Science, Engineering, and Health Students,” Sage Journals 42, no. 5 (2017): 744-745.

[5] Valerie Wilson et al., “2016 ACS shows stubbornly high Native American poverty and different degrees of economic well-being for Asian ethnic groups,” Economic Policy Institute, September 15, 2017, https://www.epi.org/blog/2016-acs-shows-stubbornly-high-native-american-poverty-and-different-degrees-of-economic-well-being-for-asian-ethnic-groups/.

[6] “American Indians and Alaska Natives - By the Numbers,” Administration for Native Americans, https://www.acf.hhs.gov/ana/fact-sheet/american-indians-and-alaska-natives-numbers.

[7] Ana Sánchez-Rivera et al., “A Look at the Largest American Indian and Alaska Native Tribes and Villages in the Nation, Tribal Areas and States,” United States Census Bureau, October 3, 2023, https://www.census.gov/library/stories/2023/10/2020-census-dhc-a-aian-population.html.

[8] Jessie Kratz, “The Navajo Treaty of 1868: A Personal Story,” National Archives, August 22, 2018, https://prologue.blogs.archives.gov/2018/08/22/the-navajo-treaty-of-1868-a-personal-story/.

[9] John Kessell, “General Sherman and the Navajo Treaty of 1868: A Basic and Expedient Misunderstanding,” Western Historical Quarterly 12, no. 3 (1981): 272.

[10] “Navajo Treaty of 1868,” Smithsonian Institution, https://americanindian.si.edu/nk360/navajo/treaty/treaty.cshtml.

[11] “Treaty Between the United States of America and the Navajo Tribe of Indians,” Navajo Nation, https://courts.navajo-nsn.gov/Treaty1868.htm.

[12] Arizona v Navajo Nation, 599 U.S. 555, 565 (2023)

[13] Arizona v Navajo Nation, 599 U.S. 555, 565 (2023)

[14] Maggie Blackhawk, “On Power and the Law: McGirt v. Oklahoma,” The Supreme Court Review 2020, no. 1 (2021): 368-369.

[15] McGirt v Oklahoma, 591 U.S. ___, 2459-2461 (2020)

[16] Dana Lloyd, “Haaland v. Brackeen and the Logic of Discovery,” U.S. Catholic Historian 41, no. 3 (2023): 97.

[17] Haaland v Brackeen, No. 21-376, 23 (2023)