Much talk has been made recently of Indian tribes meeting with the administration or Congress, but history shows us that the United States came to see us first.
Like foreign nations, Indian tribes interact with the U.S. on a government-to-government basis. In the beginning, Indian tribes did not seek out the United States, they came to us. The U.S. sought out our Native governments because the new nation wanted to negotiate cessions of land.
The 1778 Treaty with the Delaware Nation gained the Delaware’s permission to have U.S. troops cross their territory and invited the Delaware to form an Indian confederation with other Indian nations “whereof the Delaware Nation shall be the head and have a representation in Congress.” In the same treaty, the U.S. promised to send a representative to reside among the Delaware and manage trade with them.
The U.S. sought out our Native governments because the new nation wanted to negotiate cessions of land.
In Worcester v. Georgia, (1832) Chief Justice Marshall explained the basic principle of mutuality that underlies the treaties. Indian nations did not go to the U.S. asking for treaties, the U.S. came to us:
“When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the U.S. was at least as anxious to obtain it as the Cherokees? We may ask, further: Did the Cherokees come to the seat of the American government to solicit peace, or did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York.” Worcester v. Georgia, 31 U.S. 515, 551 (1832).
After the ratification of the Constitution, President George Washington sent a delegation to the Cherokee to negotiate the Treaty of Holston, 1791. Later, he invited the Cherokee Nation to receive a U.S. agent as a visitor each year to advance the government-to-government relationship between the states and the Cherokee. In his letter of August 1796 to the Cherokee Nation, Washington said:
“Beloved Cherokees, The wise men of the United States meet once a year to consider what will be for the good of all their people. The wise men of each separate state also meet together once or twice every year, to consult and do what is good for the people of the respective states. I have thought that a meeting of your wise men once or twice a year would be alike useful to you. Every town might send one or two of its wisest counselors to talk together on the affairs of your nation, and to recommend to your people whatever they think would be serviceable. The beloved agent of the United States would meet with them. He would give them information of those things which are found good by the white people, and which your situation may enable you to adopt. He would explain to them the laws made by the great council of the United States, for the preservation of peace; for the protection of your lands; for the security of your persons; for your improvement in the arts of living and for promoting your general welfare.”
Later, the U.S. invited tribal delegations to Washington to negotiate treaties. For example, on Oct. 15, 1888, the United States Commissioners met with a Native delegation of 70 Sioux Nation chiefs, including Sitting Bull, who had been invited to Washington with a request for the cession of 11 million acres of land to facilitate the formation of the State of South Dakota. Over Sitting Bull’s objections, the agreement of March 2, 1889 resulted in the cession of lands and South Dakota became a state later that year.
Sitting Bull’s opposition to the land transaction had angered the Indian agent, who was part of the 1888 delegation and he issued an arrest warrant against Sitting Bull in December 1890 that resulted in the assassination of the Sioux chief by federal government police. The Wounded Knee Massacre followed Sitting Bull’s assassination later that month.
In 1868, Congress declared the 14th Amendment to be ratified and in the Citizenship Clause all persons born in the United States and subject to its jurisdiction automatically became citizens of the United States and the state where they reside. The Supreme Court in Elk v. Wilkins (1882) held that American Indians were not made citizens by the 14th Amendment because our people were not subject to the jurisdiction of the United States, but rather were subject to the jurisdiction of our Indian tribes. The 14th Amendment Apportionment Clause repeats the original exclusion of tribal citizens, that is “Indians not taxed,” from representation in the House. American Indians had to be naturalized to become citizens, and for the most part, our people did not become citizens until the 1924 Citizenship Act.
Like states, Indian tribes are governments that must provide for the general welfare of our citizens, and today, we represent communities of American citizens, who retain original tribal citizenship. In Indian country, Indian tribes retain an original, inherent, natural right to self-government, and tribal laws govern our people. State laws are pre-empted and we maintain our own schools, hospitals, police and fire protection, social services, water and sanitation systems, among other things. We work with the federal government to ensure that our treaties are honored, our sovereignty is respected, and our people receive the services they deserve.
Today, as Native American communities composed of Indian citizens, Indian tribes maintain our original government-to-government relationship with the United States, and our delegations of tribal leaders come to Washington to represent our people. The 1st Amendment protects the rights of citizens to participate freely in our democracy by preserving the right “to petition the government for a redress of grievances.” Thus, as American citizens, our people also have a constitutional right to come to Washington.
Perhaps it is time for us to enact our own laws regulating federal interaction with tribal governments and requiring the United States’ agents to register with us when they come to Indian country. After all, they came to us first.
Ernest L. Stevens Jr., is chairman of the National Indian Gaming Association and a member of the Oneida Tribe of Wisconsin.