Native American Rights

From the time Europeans first arrived in North America, they needed goods and services from Native Americans in order to survive. Often, the terms of such exchanges were codified in treaties, which are contracts between sovereign nations. After the American Revolution, the federal government used treaties as its principal method for acquiring land from the Indians. From the first treaty with the Delawares in 1787 to the end of treaty making in 1871, the federal government signed more than 650 treaties with various Native American tribes. Although specific treaty elements varied, treaties commonly included such provisions as a guarantee of peace; a cession of certain delineated lands; a promise by the United States to create a reservation for the Indians under federal protection; a guarantee of Indian hunting and fishing rights; and a statement that the tribe recognized the authority or placed itself under the protection of the United States. Treaty making ended in 1871, when Congress passed a rider to an Indian appropriations act providing, " No Indian nation or tribe … shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty …" (25 U.S.C.A. § 71). This rider was passed largely in response to the House of Representatives' frustration that it was excluded from Indian affairs because the constitutional power to make treaties rests exclusively with the Senate. Since 1871, the federal government has regulated Native American affairs through legislation, which does not require the consent of the Indians involved, as treaties do.

Indian treaties may seem like historical documents, but the courts have consistently ruled that they retain the same legal force that they had when they were negotiated. Despite frequent challenges and intense opposition, courts have upheld guaranteed specific tribal rights, such as hunting and fishing rights. Often, disputes over treaty rights arise from conflicting interpretations of the specific language of treaty provisions. In general, there are three basic principles for interpreting treaty language. First, uncertainties in Indian treaties should be resolved in favor of the Indians. Second, Indian treaties should be interpreted as the Indians signing the treaty would have understood them. Third, Indian treaties are to be liberally construed in favor of the Indians involved. Courts have consistently upheld these principles of treaty interpretation, which clearly favor the Indians, on the basis that Indian tribes were the much weaker party in treaty negotiations, signing documents written in a foreign language and often with little choice. Liberal interpretation rules are designed to address the great inequality of the parties' original bargaining positions.