EDITORS/NEWS DIRECTORS:
The U.S. Supreme Court heard arguments last week in a water case that is shining a light on tribal rights under centuries-old treaties between the federal government and Native American tribes.
The facts of the case go back to two treaties the Navajo Nation signed in 1849 and 1868. The second established a reservation in the Southwest as the tribe’s “permanent home” — a promise the Navajo Nation says includes a sufficient supply of water. The federal government says no treaty or law forces it to address the tribe’s general water needs.
The two treaties are among 374 between tribes and the U.S. that were ratified by Congress over nearly a century. Treaty-making with tribes ended in 1871. The documents covered everything from education and health care for Native Americans to hunting and fishing rights but often had provisions specific to certain tribes.
The Supreme Court’s decision is expected before the justices recess in June. A decision in favor of the Navajo Nation would send the case back to a lower court. Tribes across the country are watching for an interpretation of the tribe’s treaty and the federal government’s obligation to assess a diminishing resource.
Tribes broadly have said their own treaties haven’t been fulfilled or honored over decades.
Here are some questions and context to use when looking into tribal rights issues in your area.
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PUBLISHABLE CONTEXT
Treaties are recognized in the U.S. Constitution as part of the supreme law of the land.
The United States had the upper-hand in treaties that resulted in tribes losing millions of acres of land. Tribes were promised federal protection and other resources in exchange. Some tribes were removed from their ancestral homeland, most notably to present-day Oklahoma. Reservations were formed.
General provisions provide for education and health care for Native Americans. Treaty provisions also can be more specific to tribes, their cultural practices and ways of life. For example, fishing rights for tribes in the Pacific Northwest, hunting rights for tribes in Montana and rights to gather items of cultural importance outside the reservation’s boundaries.
Some make reference to planning for seven generations.
Virtually all tribes over the years have alleged that the U.S. has broken or fallen short of its treaty obligations, spurring legal battles over everything from land rights to hunting and fishing freedoms to public safety concerns.
Many treaties include what’s known as the “bad men” provision, which led to federal jurisdiction over major crimes on Native American reservations when the victim, suspect, or both are Native American.
The Cheyenne and Arapaho Tribes unsuccessfully argued in recent years that the “bad men” provision should extend to federal protection against opioids manufacturers, distributors and their agents off the reservation.
Experts on federal law pertaining to Native Americans say treaties are supposed to be interpreted the way the tribes would have understood them at the time.
A decision in the Navajo case is expected by the end of June when the Supreme Court, which seemed split on the issue, typically breaks for its summer recess.
“In general, today’s court — the modern court — is protective of tribal treaty rights,” said Melody McCoy, a citizen of the Cherokee Nation and staff attorney for the Native American Rights Fund. That might not have been the case throughout history.”
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RESOURCES
— View treaties signed with Native American tribes online through the National Archives.
— Check out the exhibit on Native American treaties online or in person at the Smithsonian’s National Museum of the American Indian in Washington, D.C., which runs through January 2025.
— Reach out to the Native American Rights Fund to learn more about legal cases that have invoked treaty rights.
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QUESTIONS TO ASK
— What do treaties pertaining to tribes in your area say? Are the promises made on both sides being fulfilled? Why or why not?
— What novel ways are tribes in your area leaning on treaties to make various legal claims? How have U.S. courts in your state decided those cases?
— In what ways are tribes in your area using tribes as a tool to teach about the tribe’s history and its relationship with the United States?
— Beyond treaties, what other executive orders or acts of Congress have shaped the way the U.S. interacts with tribes in your area?
— What other organizations, states and entities have weighed in on tribal treaty rights cases in your area? What are they saying?
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EXAMPLES OF OTHER LEGAL BATTLES INVOLVING TREATY RIGHTS
South Dakota: ‘Everybody’s tired’: South Dakota tribe sues US over crime
Oklahoma: Justices rule swath of Oklahoma remains tribal reservation
Oregon: River chief imprisoned for fishing fights for sacred rights
Michigan: Michigan, Native tribes reach new Great Lakes fishing deal
Idaho: Northwestern Band of Shoshone sues Idaho over hunting rights
Montana/Wyoming: High court sides with Crow tribe member in hunting dispute
