Treaties and Supreme Court Decisions

Treaties were legal, government-to-government agreements between two legitimate governments - the United States and an Indian nation. When an Indian nation signed a treaty, it agreed to give the federal government some or all of its land as well as some or all of its sovereign powers. In return, the federal government entered into a trust responsibility with the Indian Nation in which the federal government promised to provide protection, benefits, and rights to the American Indian peoples in exchange for some or all of their land. The trust responsibility bound the United States to represent the best interests of the tribe, protect the safety and well-being of tribal members, and fulfill its treaty obligations and commitments.

 The history of the Delaware Nation (Lenape) provides a clear understanding of how a series of treaties with the U.S. government affected their land and their people. Map of Delaware RemovalAs the map below indicates, the Delaware were pushed out of their traditional homeland in Pennyslvania as early as 1682 and by 1750, were mostly settled in Ohio. There they lost a huge amount of land and again were forced to move, first to Indiana and then to Missouri. The 1818 Treaty of St. Mary ceded the remaining Delaware land in Ohio. By 1840, most but not all of the Delaware had left their Ohio homeland. By 1872, most remaining Delaware people had moved to Oklahoma which was designated as Indian Country.

Treaties were not the only legal entities that defined the federal relationship with Indian Nations. As early as 1823, the US Supreme Court also assumed that role. In what is known as the Marshall Trilogy, the Supreme Court established the legal basis for interpreting federal Indian law and defining tribal sovereignty.

Thus, beginning with Johnson v. McIntosh, the Supreme Court produced two competing theories of tribal sovereignty:

Over the years, the Court has relied on one or the other of these theories in deciding tribal sovereignty cases. Whichever theory the Court favored in a given case largely determined the powers the tribe had and what protections they received against federal and state government encroachment.

The Marshall Trilogy cases bolstered the federal land-taking powers of the 371 treaties that were ratified by the U.S. until 1868. Indians were relegated to a kind of limited sovereignty that was to be governed by paternalistic trust and subject to the interpretation of the US government and its courts. By 1871, that paternalistic trust was clearly-articulated by Congress when it decided to end all government-to-government treaties with Indian nations. No longer would Indians have any negotiating power or say about their treatment at the hands of the US government. Thereafter, such determinations would be made as Congress passed various federal policies and laws.