When the United States was established, the new federal officials followed the practice of Great Britain in entering into treaties with tribal nations to establish alliances and acknowledge territorial boundaries. Over time, the U.S. officials sought to enter into treaty agreements for land purchases. In those legal negotiations, tribal leaders reserved homelands as reservations and terms to provide for future generations.
What does not seem to be generally understood by U.S. agencies, state governments, mainstream news outlets, and the general public is that many of those treaties are legally binding long-term purchase agreements with ongoing legal obligations.
There were over 400 treaties entered into by the United States with tribal nations. Many of those treaties included a cession, another word for purchase of land, and in exchange, tribal leaders added terms of ongoing hunting, fishing, and harvesting rights on the lands purchased by the United States. There is no end date to those ongoing treaty rights terms for tribal governments and tribal members/citizens.
An example that most would be familiar with is a long-term purchase agreement with installment payments every year. The United States agreed to the purchase of often-massive numbers of acres and in exchange agreed to often a paltry sum and to ongoing legal obligations to tribal nations with no end date. Over time, the United States has not been upholding the treaty rights for hunting, fishing, and harvesting in the purchased lands, which have led to tribal nations engaging in expensive litigation to hold the United States to the purchase agreements (treaties).
Think of this as an owner signing a purchase agreement with a buyer and requiring the buyer to continue to make installment payments long-term. When the buyer stops making the installment payments, then the owner may call in the obligation or seek to legally enforce the obligation.
Tribal nations owned the lands in North America prior to the establishment of the United States. For the United States to gain territory to add more states, the U.S. officials entered into legally binding treaty documents with tribal nations to secure land purchases and these land purchases have long-term obligations (treaty rights).
Further, the state governments admitted to the United States have also blocked the ongoing treaty rights due to tribal nations. This has required the tribal nations to engage in costly litigation to hold the state governments to their ongoing obligations in joining the United States Union. To enter into the United States, new states were required to uphold applicable United States law.
In the U.S. Constitution Art. VI, the supremacy clause provides the following: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Legally binding treaties are within the supreme law of the United States and must be followed by the state governments. This also includes the federal agreements enacted by the U.S. Congress recognizing tribal nation reservations and the provisions of the Indian Reorganization Act to allow the Secretary of the Interior to take lands into trust and restore lands of tribes, 25 U.S.C. § 5108.
This discussion of the legal agreements the U.S. is bound to uphold with tribal nations is highly relevant to the continued enforcement of basic sustainability principles to ensure hunting, fishing and harvesting on the lands purchased by the United States. Running oil pipelines and other energy infrastructure through the lands with ongoing legal obligations requires at a minimum the consent of the tribal nation owner and the treaty partner. The mainstream media often leave out the legality of the treaty rights being asserted in reporting on the litigation filed, the water protector camps, and the tribal nation statements.
The tribal nation treaty rights to clean water, clean land and clean air for tribal members and for tribal treaty resources are legal obligations agreed to by the United States and required to be followed by the state governments. These are not optional and they are not “special rights.”
These are the terms for the land purchases that were astutely and wisely negotiated by ancestral tribal leaders. These terms do not expire and they run with the use of the land by the U.S. as the purchaser and the state governments receiving land rights from the federal government.
Tribal nations are forced to litigate, protest, and educate U.S. and state officials on the terms of the treaties and agreements ratified and entered on these lands. The rule of law requires the U.S. as a treaty partner to fulfill its legal obligations and to enforce those obligations against its component state governments.
The U.S. and state governments have benefitted immensely from the treaty agreements and cannot now in good faith ignore the long-term obligations under those same legal agreements.
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