A Legal History of the U.S. and a Future of Rights for Indigenous Peoples
Mauna Kea. The Keystone XL and Dakota Access pipelines. Recognizing and investigating missing and murdered indigenous women across the U.S. These are just a few examples of the modern-day fight for indigenous rights and, arguably, human rights. What are human rights, if not the recognition of a person or group’s humanity — their right to not be deprived of what is necessary to survive and thrive on their terms? The right of indigenous peoples not to be annihilated, extinguished from Earth, whether that is through physical or cultural death. The U.S. government has attempted both since its inception.
Through centuries of broken bones and broken treaties, the human rights of indigenous Americans have been violated countless times, demonstrating the U.S. government’s inability to respect even their basic humanity. Thus the fight for indigenous sovereignty and self-determination that continues to present day. Not only in an attempt to undo the wrongs of the past but also to right the present, to give indigenous nations the ability to protect the existence and humanity of their people.
When the U.S. was fighting for independence against the British, they signed several treaties with indigenous nations to obtain their support and passage through indigenous lands. Without these treaties and the support of indigenous nations, the U.S. might have never existed. One of the first treaties that the U.S. made was with the Delaware Nation in 1778. The goal of the treaty was two-fold: the U.S. sought safe passage through Delaware lands as well as trade while the Delaware Nation sought to secure their status as an independent nation and protect their lands in the Ohio territory. The existence of a treaty alone is an argument of indigenous sovereignty as treaties can only be made between two sovereign nations. While the 1778 treaty allowed for passage, the last article of the treaty makes it clear that the Delaware Nation is to be respected as a sovereign state:
to guarantee to the aforesaid nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner, as it hath been bounded by former treaties, as long as they the said Delaware nation shall abide by, and hold fast the chain of friendship now entered into.
For the first few decades of U.S. history, treaties like those with the Delaware Nation and Cherokee Nation (Treaty of New Echota) were mostly respected and upheld in the Supreme Court. It was not until political interests began to enter the picture that the U.S. judiciary and legislative systems slowly eroded the existence of indigenous sovereignty. For instance, the aforementioned “friendship” between the Delaware Nation (and other indigenous nations) and the U.S. did not last for long.
Expansionist policies. Wars. Genocide. The errosure of tribal sovereignty in the court system. There was a purposeful campaign of erasure that included moving indigenous folks onto reservations and starving them out through annihilating their resources. Once they were weakened, the U.S. government passed a series of laws to erode the sovereign status of indidgenous nations. These are a few of the most crucial ones:
- 1886: General Allotment Act (i.e. Dawes Act) — This subdivided indigenous landholdings that were meant to cause rifts within different indigenous communities and force assimilation. As a consequence, indigenous nations “lost control of about 100 million acres of land” or about “two-thirds of the land base they held in 1887”.
- 1924: Native American Citizenship Act — With this act, the U.S. made all indigenous people U.S. citizens, making the nations into simply groups of individuals. This was an attempt to invalidate treaties as the U.S. does not make treaties with groups of individuals, only recognized nation-states.
- 1946: Indian Claims Commission (ICC) Act — The ICC was supposedly created to address indigenous claims to land and sovereignty based on the treaties they made with the U.S. government. However, the U.S. hardly returned any land and established governments via constitutions that the indigenous nations had little to no say in. These constitutions also didn’t have an outline for a judicial branch, because the U.S. government thought Indians were incapable of adopting such a sophisticated mechanism. This was assimilation under the guise of sovereignty.
- 1953: House Concurrent Resolution 108 — This allowed the federal government to “terminate” tribes that did not meet federal requirements for recognition, denying any remaining components of sovereignty to indigenous nations across the country.
Moreover, these acts were crafted to erase indigenous sovereignty in order to excuse horrific treatment of indigenous people, to take their land and their livelihoods, to make them ill-equipped to defend their human rights against an encroaching U.S. government.
Recent Legal Precedent for Indigenous Sovereignty
When Oliphant v. Suquamish Indian Tribe came before the Supreme Court in 1978, there was a huge cultural movement for recognition of tribal sovereignty, hoping to clean up these centuries of injustices. It was readily accepted that tribes had jurisdiction over their land and people as a part of their sovereign nature. This shift was tested, though, in Oliphant. Mark David Oliphant was a non-Indian living on Indian land who assaulted a tribal officer and resisted arrest. Daniel B. Belgarde was also involved in the case, having been arrested after a high-speed chase ended with him crashing into a tribal police car. Both protested these charges, though, claiming that as a non-Indian he was not under the criminal jurisdiction of the Suquamish — even though they were arrested on tribal land and both instances included the endangering of tribal law enforcement.
The Squamish argued that they did have criminal jurisdiction over Oliphant due to the nature of sovereignty. As the literal definition of sovereignty is supreme power or authority, this would mean that Squamish have the right to create and enforce laws on their sovereign land, just like a sovereign nation-state. Treaties between the U.S. and the Squamish never erased this right — which was noted by Justice Rehnquist. They also asserted that diminishing or extinguishing this right could have detrimental consequences, like in the case of a non-Indian abusing a Squamish spouse on tribal land. The tribe would not be able to prosecute the abuser without criminal jurisdiction. The crime would also not be covered under the Major Crimes Act of 1885 — which covers crimes such as rape and murder — so the Federal Bureau of Investigations (FBI) could also not get involved, leaving the abused without justice and sending the case to legal limbo. This is sometimes the case, even with rape and murder, as the FBI has historically and is presently reglecting cases.
However, the Supreme Court ultimately sided with Oliphant. According to the majority opinion, “Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers ‘inconsistent with their status’ as dependant Indian tribes.” Basically, they argued that since the original treaties between the Squamish and the U.S., the Squamish had become more of a dependent, internalized state, necessitating food, financial, and protective aid from the U.S. In becoming more dependent, they lost their ability and right to exercise criminal jurisdiction over non-Indian U.S. citizens. The court’s use of dependency as a negation of sovereignty can be seen as unfounded, though, as. Many sovereign nations rely on the U.S. for military protection, aid, and training, such as Japan (military protection) and Guatemala (development aid). These countries are free to arrest and detain U.S. citizens within their sovereign borders and based in their laws — so why not the tribe? According to the ruling,
The effort by Indian tribal courts to exercise criminal jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist. Until the middle of this century, few Indian tribes maintained any semblance of a formal court system.
To be blunt, this was racist and a willful denial of history in favor of U.S. dominance and white supremacy. In fact, the only reason why indigenous nations were so dependent on the federal government was because of horrific histories and policies. It also ignores that indigenous courts did exist pre-colonization — the Navajo, for instance, had the system of peacemaking. The the U.S. system of governance as a whole was based largely on that of the Iroquois. Indigenous peoples survived and thrived on the American continent for thousands of years before colonization.
With the reservation having become now checkerboard of tribal lands with U.S.-run infrastructure running through it, the Court claimed that the Squamish had implicitly relinquished certain rights enshrined in full sovereignty.
Indigenous Sovereignty in Courts Today
The upcoming Supreme Court case Murphy v. Royal threatens this idea, though, as it begs the question: is “Indian country” still “Indian country” if plots of it were sold off to settlers but Congress never dissolved the reservation? Murphy v. Royal goes back to 1999 when Patrick Murphy, a member of the Muscogee (Creek) Nation, murdered George Jacobs in Oklahoma. In 2000 Murphy was convicted of the murder and sentenced to death. Murphy then filed filed an application for post-conviction relief, claiming that, since he was an Muscogee and the crime was committed on Muscogee land, he was not subject to the criminal jurisdiction of the state of Oklahoma. Rather, the crime would be under the concurrent jurisdiction of the federal and tribal governments, as it was a major crime committed in Indian country. This would be beneficial to Murphy as there is not a death penalty in the federal or Muscogee courts.
The respondent argued that the murder was under the jurisdiction of the state of Oklahoma since the crime was not committed on definitively Muscogee land. The murder was committed within the designated area of the original Muscogee reservation but the specific piece of land it was specifically on was not held by any tribal members and, thus, not tribal land. In fact, out of the original 3 million acres in Indian trust, held by federal government, there was now only 6,856 acres (.002%) of land still held by tribal members. In having a mostly non-Muscogee population, the Muscogee implicitly conceded sovereignty over the original reservation. This is similar to the Supreme Court’s decision in Oliphant.
Murphy’s defence team, though, pointed to Solem v. Bartlett (1984) in which the Supreme Court ruled that reservations could only be dissolved by Congress, not simply implicitly. As for the Bartlett case, the Cheyenne River Act of 1908 established the Lakota/Sioux reservation and Secretary of Interior power “to sell and dispose of” 1,600,000 acres (6,500 km2) of the reservation to non-Indians for settlement. The Secretary of the Interior did, in fact, “sell and dispose” the excess reservation land, but Congress never dissolved the reservation. Additionally, the Court found that the intent of the homesteading allotments was not to decrease the reservation.
Thus, both the intent and the letter of the law left the reservation intact. The same case can be applied to the Muscogee as Congress never dissolved their reservation nor were there any laws made to purposefully diminish the reservation. The respondent could attempt to make the same argument that the Supreme Court made in Oliphant: that the Muscogee lack ability to prosecute and are also too dependent to have pure sovereignty. Yet, the Muscogee do have a tested court system. Even if they didn’t, murder falls under the Major Crimes Act, so the U.S. federal government will be involved in the case if the Supreme Court rules in favor of Murphy, negating the issues of the Muscogee’s ability to prosecute or the purity of their legal sovereignty.
The 10th District Court of Appeals ruled in favor of Murphy, but now the case is going to the Supreme Court. Ultimately the implications of the Murphy case outcome are significant and concerns all indigenous nations. It could challenge decisions like that of Oliphant. It could mean that tribal governments can tax non-indigenous locals living on the reservation and would essentially reverse decades of state authority over indigenous lands and peoples. It could restore some of the promises made in treaties between Indian nations and the U.S. that have been left to the wayside — giving more legal authority to the struggles around Mauna Kea, the Dakota Access Pipeline, and sovereignty in general.
Why Is Sovereignty Important?
After all of this, why trust the U.S. government? Why rely on the U.S. system to give indigenous peoples sovereignty when the interests of the U.S. historically and presently rest in the subjugation of these nations inside of a nation? Why put faith in a justice system that you and your ancestors didn’t ask for? Mauna Kea. The Keystone XL and Dakota Access pipelines. Hundreds of missing and murdered indigenous women. The right to clean water and life. Across the U.S. Indigenous people are suffering every day due to the erosion of their ability to be independent, their sovereignty.
Human rights can only be protected when one owns one’s government and justice system. This is the problem we see in the U.S. today, not just with indigenous people. The indigenous fight for sovereignty is contextualized in a larger movement towards self-determination. People living in U.S. territories don’t get a vote at all. And no voting representatives in Congress. As a person from California, my vote for president is one-fourth of that of someone in Montana. As a non-felon and as a person whose state has some of the most accessible ways of voting, I am still one of the privileged ones.
My family at least came here as immigrants, wanting the U.S. system. We were not indentured servants or slaves. Our nation-states were not wrangled into submission or, as it sometimes occurred, did not win on the battlefield but lose in the courts. Moreover, the federal courts deciding on issues of sovereignty are not elected but selected by politicians, politicizing the system, usually out of the favor of indigenous peoples. And when I ask my indigenous classmate what she thinks of the issue of U.S. citizenship, she says I don’t want it. She already has a nation and a passport to prove it. Some may ask her to be more grateful, especially as she is attending one of the top public schools in the U.S. But this university would not be here if not for the subjugation of her people and, specifically, that of the Ohlone. It is built on genocide and broken treaties. What have we showed of gratitude towards the peoples whose land and suffering we built an empire with?
Ultimately, this country doesn’t stand for indigenous peoples. So why does the U.S. get so much control over their human rights? Our human rights, for better or worse, live and die by the protection of our nation-states. To protect the human rights of indigenous peoples, we must support their efforts at self-determination and try to give back as much as we have taken — on their terms.