The Cherokee Nation’s Return to Power
The Cherokee Nation stands as perhaps the most remarkable example of tribal persistence despite systematic treaty violations. Following the U.S. Supreme Court’s July 2020 decision in McGirt v. Oklahoma, in 2021 the Oklahoma Court of Criminal Appeals ruled in Hogner v. State that the Cherokee Nation Reservation had never been disestablished and remains intact to this day. Today, under the leadership of the Principal Chief, the Cherokee Nation continues to exercise its treaty rights, sovereign authority, and jurisdiction over the Cherokee Nation Reservation and to strengthen its institutions of tribal governance for the benefit of the Nation’s greatest resource—its citizens, their children, and the future generations of Cherokees. The Cherokee and Navajo Nations have the most tribal members of any tribe in the United States and are still working to protect their inherent sovereignty and preserve their respective culture, language, and values. What makes their survival even more extraordinary is that they endured forced removal, the Trail of Tears, and decades of federal attempts to dissolve their government.
The Navajo Nation’s Sacred Treaty of 1868
With the Treaty of 1868, the Navajo became the only Native nation to use an agreement with the federal government to return home. On June 1, 1868, a delegation of Navajo leaders signed with X’s a “treaty and agreement” with the United States that ended the exile of the Navajo from their ancestral homeland and their incarceration at Fort Sumner. Four years earlier, the Army rounded up the Navajo and forced them to walk to Fort Sumner, approximately 350 miles, in a campaign to assimilate the Navajo and relocate them to a reservation. There has only been two (2) treaties between the Navajo and the United States that have been ratified by Congress. As a result, those two (2) treaties are considered to be part of the laws of the United States. Even though the Treaty anticipated the eventual assimilation of the Navajo, it also created the physical space and opportunity for the Navajo to define and exercise sovereignty and self-government.
Sioux Nations Fighting for Fort Laramie Promises
Conflicts over the illegal usage of Sioux lands by the U.S. outlined in the Fort Laramie Treaty are ongoing. In 2018, the Rosebud Sioux Tribe and the Fort Belknap Indian Community sued the Trump administration for violations concerning the permitting of the Keystone XL Pipeline, which was shut down in June 2021. The Sioux tribes continue to assert their treaty rights despite centuries of broken promises. In Iron Crow v. Oglala Sioux Tribe, the United States Supreme Court concluded that two Oglala Sioux defendants convicted of adultery under tribal laws, and another challenging a tax from the tribe, were not exempted from the tribal justice system because they had been granted U.S. citizenship. These legal victories demonstrate how the Sioux have outlasted federal attempts to undermine their authority through citizenship and assimilation policies.
Oklahoma’s Surprising Treaty Renaissance
There are 39 federally recognized tribes in Oklahoma alone and they are the largest economic driver in the state. This transformation came after decades where Oklahoma tribes were told their reservations no longer existed. The McGirt decision changed everything by recognizing that tribal reservations in Oklahoma had never been properly disestablished by Congress. Four Native American tribes operating casinos in Oklahoma filed a federal lawsuit in August 2020 to invalidate certain tribal-gaming compacts entered into by the Governor of Oklahoma and other tribes. The tribes argued that the Governor lacked the authority to enter into these compacts, violating Oklahoma law and their rights under the Indian Gaming Regulatory Act (IGRA). This legal action shows how tribes are now using their sovereignty to challenge state overreach and protect their gaming rights.
The Northwest’s Fishing Rights Warriors
In 1964 SAIA, led by Hank Adams, began organizing “fish-ins” after the state of Washington refused to recognize the treaty-protected right of Pacific Northwest tribes to fish in ancestral waters. Pacific Northwest tribes, for whom fishing was a vital economic activity, argued that these restrictions were a violation of their treaty rights. Consciously modeled on the sit-ins in the American South, the fish-ins triggered a wave of resistance across the Northwest and the nation. These tribes understood that their survival depended on defending treaty rights that predated Washington statehood. The fish-ins became a model for tribal activism nationwide and proved that tribes could successfully challenge state authority when backed by federal treaties.
The Delaware Nation’s First Treaty Legacy
The 1778 Treaty with the Delawares was the first treaty negotiated between the newly formed United States and an Indigenous nation. The Lenape (Delaware) were already being forced from their ancestral homelands in New York City, the lower Hudson Valley, and much of New Jersey when the Dutch settled there in the 17th century. Despite centuries of displacement, Delaware tribal communities have maintained their identity and government structures. The Delaware Nation today operates as a federally recognized tribe in Oklahoma, having survived multiple relocations while preserving their cultural practices and political institutions. Their persistence demonstrates how tribes can outlast the very treaties that displaced them by adapting their governance to new circumstances.
The Six Nations’ Constitutional Influence
The Haudenosaunee, or Six Nations Confederacy, continues to assert sovereignty based on treaties that predate the U.S. Constitution. Despite this apparent act of friendship, the land returned to the Six Nations was lost to U.S. expansion, and the tribes were forced to relocate. While the Onondaga, Seneca, Tuscarora, and Oneida stayed on reservations in New York, the Mohawk and Cayuga moved into Canada. Yet the confederacy’s governing structure survived this division, with Grand Councils continuing to meet and make decisions affecting member nations on both sides of the U.S.-Canada border. Their Great Law of Peace influenced the framers of the U.S. Constitution, and ironically, this ancient governmental system has outlasted many of the treaties the United States made with them.
Modern Tribal Courts Asserting Ancient Authority
Federal trial and appellate courts issue more than 650 written opinions in cases dealing with Indian law each year, and settle, dismiss, or resolve without opinion countless others. The U.S. Supreme Court hears an average of between two and three new Indian law cases every year. This remarkable litigation volume shows how actively tribes defend their sovereignty in federal courts. Further, the court held that whilst no law had directly established tribal courts, federal funding “including pay and other expenses of judges of Indian courts” implied that they were legitimate courts. The court, citing to Stanko v. Oglala Sioux Tribe, explained that under Eighth Circuit precedent, plaintiffs must exhaust their tribal court remedies before being able to bring an action in federal court. The court further noted that the Tribal Court should be the first court to consider the underlying facts and legal bases for the Bivens claim because of its potential impact on tribal sovereignty. These rulings strengthen tribal judicial authority by requiring that tribal courts get first crack at cases affecting tribal members.
Water Rights Battles in the Desert Southwest
The U.S. Supreme Court held that the 1868 peace treaty between the United States and the Navajo Tribe (the “Tribe”), which established the Navajo Reservation and reserved necessary water to accomplish the purpose of the Navajo Reservation, did not require the United States to take affirmative steps to secure water for the Tribe. Despite this setback, the Navajo Nation continues to assert water rights based on the Winters doctrine. Because the Treaty of 1868 must be read as the Navajo “themselves would have understood” it, it is impossible to conclude that water rights were not included. But at least we know the right question to ask: How much is required to fulfill the purposes of the reservation that the Treaty of 1868 established? The ongoing water rights litigation shows how tribes continue to press treaty claims even when courts rule against them on specific issues.
Environmental Justice Through Treaty Rights
Uranium mines were constructed upstream of Navajo and Hopi reservations in Arizona and Nevada, measurably contaminating Native American water supply through the 1940s and 1950s with lasting impacts to this day. The Nevada desert was also a common nuclear testing site for the U.S. military through World War II and the Cold War, the closest residents being Navajo Nation members. These environmental disasters created new grounds for treaty claims, as tribes argue that contamination violates federal trust responsibilities. As recently as 2015, the Gold King Mine contaminated three million gallons of water in the Colorado River which serves as drinking water for the Navajo and Hopi downstream. The federal EPA appropriated $156,000 in reparations for Gold King Mine, while the Flint, Michigan water crisis in 2014 received $80 million in federal funds. This disparity in federal response has energized tribal environmental justice movements that frame contamination as treaty violations requiring federal remediation.
Gaming Sovereignty and Economic Independence
Tribal gaming represents perhaps the most successful assertion of sovereignty in modern times, with tribes using their exemption from state gambling laws to build economic independence. The Supreme Court of Montana declined to adopt a bright-line rule that would prevent tribal entities from enjoying sovereign immunity when those entities are incorporated under the laws of the state rather than under tribal law. This protection of tribal business enterprises shows how sovereignty adapts to modern economic realities. The American Indian Civil Rights Act of 1968 applied the Bill of Rights to the relations of American Native Americans to their tribal governments and required the consent of tribes to the imposition of state jurisdiction over Indigenous territory. The requirement for tribal consent has proven crucial in protecting gaming operations from state interference.
The Trail of Broken Treaties Movement
The Trail of Broken Treaties was the product of years of grassroots organizing among Native American activists. The caravan was meant to generate publicity that would draw Americans’ attention to the government’s failure to uphold its treaty obligations. Known as the Twenty-Points Position Paper, it distilled their analysis of Native American issues into a list of twenty demands, and proposed a new framework for the relationship between Indian tribes and the federal government. Among other things, it called for a restoration of the treaty-making process, the legal recognition of existing treaties, the return of 110 million acres of land to indigenous communities, the repeal of the termination laws and restoration of terminated tribes, and the protection of religious freedom. This movement showed how treaty rights could become a rallying point for pan-Indian activism that transcended tribal boundaries.
Congressional Recognition of Continuing Treaty Obligations
In 1871, Congress enacted a law prohibiting the federal government from making new treaties with American Indian tribes. That law, however, did not invalidate or modify any “obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871.” This clause has proven crucial in modern litigation, as tribes successfully argue that pre-1871 treaties remain legally binding on the federal government. Treaties are, in fact, living documents, which even today legally bind the United States to the promises it made to Native American peoples centuries ago. Treaties also acknowledge the inherent sovereignty of Indigenous nations, a fact that has been disputed and undermined in U.S. courts and Congress since 1831, when the Supreme Court ruled that tribes were “domestic dependent nations” without self-determination. Courts continue to interpret these treaties as binding contracts that create ongoing federal obligations.
The Unbroken Chain of Tribal Sovereignty
From 1778 to 1871, the United States government entered into more than 500 treaties with the Native American tribes; all of these treaties have since been violated in some way or outright broken by the U.S. government, with Native Americans and First Nations peoples still fighting for their treaty rights in federal courts and at the United Nations. Yet paradoxically, these broken treaties have become the foundation for modern tribal sovereignty claims. It found that tribes “still possess their inherent sovereignty excepting only when it has been specifically taken from them by treaty or Congressional Act”. The systematic violation of treaties has not destroyed tribal nations but instead created a vast body of federal Indian law that recognizes continuing tribal rights. Each broken promise has become evidence of federal obligations that outlast the politicians who made them, proving that Native nations possess an institutional memory and legal persistence that has outlived centuries of American attempts to eliminate them.
Native nations have survived not despite broken treaties, but because of them. Every violation created legal precedent, every betrayal strengthened tribal unity, and every attempt at termination sparked new forms of resistance. These tribes understood something their treaty partners did not: that sovereignty isn’t just about land or laws, but about the unbreakable will of a people to govern themselves. The treaties may have been broken, but the nations that signed them remain unbroken.
